10 So. 2d 896 | La. | 1942
This is a suit to compel the defendant to carry out a contract to buy from the plaintiff *1062 three certain tracts of land at the price and on the terms stipulated in the contract. The defendant contends that the plaintiff's title is defective and not merchantable. The trial judge, deciding that the plaintiff's title was good, gave judgment in his favor. The defendant is appealing from the decision.
The facts on which the defense is founded are not disputed. Colonel George McC. Derby owned certain fractional interests in the land, consisting of three tracts, having a total area of 55 acres, in the City of New Orleans. On September 7, 1921, Colonel Derby, having three sons and a daughter, executed a notarial act creating a trust for their benefit and transferring the property to the trustees for the use and benefit of the four children. It was stated in the deed that the Orleans Anti-Tuberculosis League was then negotiating to buy the property, including Colonel Derby's interest, for a total price of $280,000; hence it was stipulated in the act creating the trust that if the negotiations with the League should result in the League's consenting to buy the land at the price stated the trustees were instructed by Colonel Derby to join in the sale to the League, and thereafter to administer the proceeds of the sale for the benefit of Colonel Derby's four children. Soon after the trust was created the League agreed to buy the property for the price stated, and on January 23, 1922, the sale was made to the League. Colonel Derby and his wife signed the act of sale with the trustees for the purpose of conveying to the League Colonel Derby's undivided interest in the land. A part of the price for which his interest was sold to *1063
the League was represented by the League's promissory notes secured by a mortgage and vendor's lien on the property. The notes were not paid at maturity and in 1941 the mortgage was foreclosed and the property was adjudicated to George T. Derby, who is the plaintiff in this suit, and who was one of the four beneficiaries of the trust which Colonel Derby created on September 7, 1921. The trust has expired by its own terms. The trustees actually received the portion of the price due to the four beneficiaries of the trust, for the sale of their father's interest in the property, and the trustees administered the proceeds under the terms of the trust. It is admitted by the parties to this suit that the four beneficiaries of the trust received their share of the proceeds of the sale of the property to the Anti-Tuberculosis League; hence it is conceded by the defendant that these beneficiaries, who are now the only presumptive heirs of Colonel Derby and his wife, could not successfully question the validity of the title held by the plaintiff in this suit. The defendant's only contention in that respect is that it is possible that Colonel Derby might hereafter adopt a child, who might become a forced heir, or that Colonel Derby might become the father of another child; and that any such forced heir would have a right of action to sue to reduce the donation made by Colonel Derby to the trustees on September 7, 1921, if the value of his interest in the property should exceed the value of the disposable portion of his estate at the time of his death. The defendants refer to article 1517 of the Civil Code, which provides that a suit by a forced heir to reduce an *1064
excessive donation to the disposable portion of the ancestor's estate may be brought against a third party claiming title directly or indirectly from the donee. It was so decided in the case of Tessier v. Roussel, 41 La.Ann. 474, 6 So. 542, 824, where the article of the code was referred to as giving to a forced heir such a right of action against a third party holding title from the donee at the time of the death of the donor. In the sequel of that case, Guidry v. Caire,
The defendant, in answer to this suit, made the point that Colonel Derby could not make a valid donation of his property without the consent of Mrs. Derby. That point is not urged in the defendants' brief, and is perhaps abandoned, for there is no merit in it. Mrs. Derby signed the act of sale of the property to the Anti-Tuberculosis League, through an agent or attorney in fact appointed by her, and in the power of attorney, by authentic act, she ratified and confirmed the transaction, and authorized her agent to join in the sale of the property to the Anti-Tuberculosis League. Our finding that the transfer of the property to the Anti-Tuberculosis League was not effected through a donation of the property to the trustees of Colonel Derby, but was effected by virtue of the outright sale by him and Mrs. Derby, and by his trustees acting as his agents, is enough to dispose of any complaint that Mrs. Derby might make that there was a donation of the property without her consent.
The judgment appealed from is affirmed at the cost of the appellant.
ROGERS, J., absent. *1068