6 La. 231 | La. | 1834
delivered the opinion of the court.
On the 14th June, 1828, William C. Withers, by act before notary, made a donation to his sister Sarah Ann Withers, of a certain lot of ground. The donee is declared by the notary to have been present and accepting, and she signed the act. Both parties appear to have acted as persons of full age.
The clause of the act containing the conditions and limitations of the donation is in the following words. “To have and to hold the said lot of ground and premises with the appurtenances unto the said Sarah Ann Withers, her heirs and assigns, by title of donation inter vivos upon this condition, that if the said Sarah Ann Withers shall die without leaving children, or descendants of her children at the time of her decease, that then in that case, the said lot of ground and premises shall revert to and become the property of the said William C. Withers and his heirs, as if this donation had never been made, but it is hereby declared and understood, that the said lot of ground and premises, and all improvements that may be hereafter made thereon, or any part thereof, may be sold and disposed of by the said donee, S. A. Withers, during her life time, with the consent and concurrence of the said William C. Withers the donor.”
Withers, the donor, died in 1829, leaving a will written and dated in 1823, by which he bequeathed the whole of his estate in equal portions to his wife, and his sisters Sarah Ann Withers and Margaret Withers.
After his death, Sarah Ann Withers made a donation of one undivided half of the lot in question, to the widow of the donor. This suit is instituted by one of the legatees of the donor against the other two, claiming her share of the lot in question, as a part of the estate bequeathed, and alleging the nullity of the donation made to Sarah Ann Withers, on two grounds. 1. Because the donation was not accepted; alleging that the donee was a minor above the age ofpuberty at the timé the act was passed, and should have accepted
On the trial below, the defendant’s counsel offered certain witnesses to prove declarations of William C. Withers, as to the age of the defendant Sarah Ann Withers. The witnesses were sworn and the plaintiff took a bill of exceptions. But it does not appear from the bill of exceptions on what specific ground the evidence was objected to. It is much too vague to enable the court to say that the judge a quo erred in admitting the testimony of the witnesses.
The admission of the deposition of Henry Crist was also objected to on the ground that it was not the best evidence °f the facts intended to be proved thereby; and a bill of exceptions was taken to its admission by the court. It is not enough to allege generally, that the evidence is not the best; . - - _ it must be shown that either from the nature or the fact to be proved or otherwise, that there is better evidence behind in the power of the party. If the fact to be proved was the age of Sarah Ann Withers, which we can ascerta n only by inspecting the deposition itself, then testimonial evidence would be admissible, unless it is first shown that 'there exists a record of births or other written evidence. We cannot say that the court below erred in admitting the deposition.
It is not necessary to notice a third bill of exceptions in the record taken to the ruling of the District Court in rejecting the depositions of some sisters of the donee, which were objected to on the ground of their interest in the cause. The District Court did not decide on the question of fact contested by the pleadings, to wit, the minority of the donee. This is not complained of by the parties and the court is called on to review the judgment, such only as was appealed . m . . . from. I he admission or rejection of the evidence in ques- * tion could not have any influence on the' decision of the J questions of law presented to this court.
I* Assuming therefore, as has been assumed in the argument on both sides, that in point of fact, Sarah Ann Withers was a minor at the time, above the age of puberty, the question presented for the consideration of the court on this
On this point numerous commentators, as well on the ancient jurisprudence as the modern legislation of France, have been cited. They range themselves into two distinct schools; the one contending, that in cases of donation inter vivos, it is essential to its existence, that both parties should be capable of contracting, and should give their assent in the forms required by law, that without it neither party is bound, and that the nullity resulting from such incapacity is absolute. The other maintaining, that minors above the age of puberty are capable of bettering their condition by every form of contract; and that he who contracts with such minor is bound, although the minor himself may avail himself of his want of capacity; in other words, that the nullity is only relative. Fortunately this court is not called on to reconsider these discrepancies, nor to declare which of these two systems is most consonant to the Code of France. It is rather our duty to inquire what is the legislative will in this state on this controverted point.
Our Code declares, art. 1785, that “the persons who have treated with a minor, a person interdicted, or of insane mind, or with a married woman, cannot plead the nullity of the agreement, if it is sought to be enforced by the party, when the disability shall cease, or by those who legally administer the rights of such persons during the disability.”
Does this principle apply to the case before the court? It is earnestly contended that it does not, and that donations inter vivos, form an exception to the general rule.
Let us examine the extent of this principle so far as it can be learned by reference to the subject matter treated of in that part of the Code.
The preliminary title to the third book of the Code of the different modes of acquiring the property of things, declares “that the property of things or goods is acquired by inheri
These principles are established in title four of the third 1 A book, which treats of conventional obligations.
Among the general principles relating to this subject, we find the following: “Contracts in general under whatever denomination they may or may not be included in the above division are subject to certain rules which are the subject of this title. Art. 1770. On the next chapter of the law title^ the code proceeds to treat of the parties to a contract, and their capacity to contract, and it declares “that all cases of incapacity are subject to the following modifications and exceptions.” Louisiana Code, art. 1776. Among those modifications and exceptions is the one first recited, art. I785? that he who has treated with a person incapable of contracting, cannot plead the nullity of the agreement.
It is difficult to conceive a principle more broad, more directly applicable to all matters of convention, by which property may be acquired. And referring to the relative capacities of contracting parties. It must be decisive on this question unless there should be found something under the particulur head of donations inter vivos which controls and limits it.
It is urged by the counsel for the appellant, that art. 1523 of the Code, takes this case out of the general rule. “An act shall be passed before a notary and two witnesses of every donation inter vivos, of immovable property, of slaves or incorporeal things, such as rents, credits, rights on actions, underpaid of nullity.
Undoubtedly an act of donation of immovables under private signature, would be null. The Code requires a higher solemnity. But here is an act passed before a notary
This last article declares that a minor arrived at the age of puberty must accept under in the authorisation or with the concurrence of his curator. But this clause is not prohibitory so as to impart a nullity, if contravened, nor is the pain of nullity expressly declared. If it had been the intention of the legislature to amend a notarial act, on the ground that one party had not given his assent in the manner directed by law, in order to make the agreement binding on him, it would have added to this article the penalty of nullity.
The acceptance to bind the donor must be made in precise terms, and binding form of expression, which shows that the parties understood each other as to the thing given, and the conditions and charges annexed to the donation, is, in our opinion, sufficient. The words “present and accepting,” followed by the signature of the parties in the present case, seems to us sufficiently precise.
Such was incontestibly the Roman law on this subject. “Obligari ex omni contractu pupillus sine tutoris auctoritate non potest. Adquirere autem sibi stipulando, et pen traditionem aecipiendo, etiam sine tutoris auctoritate potest. Digest, b. 26, t. 8, l. 9. Institutes, b. 1, t. 21.
It was adopted in Spain, at least as early as the publica
The court is of opinion that the Louisiana Code has not abrogated this provision of the Spanish law, and that minors, above the age of puberty, and without the concurrence of a curator,'may better their condition by accepting a donation.
II. The second ground of nullity alleged, is, that the act contains a substitution. It seems to be conceded in the argument, that the expressions in the above contract “ to the said Sarah Ann Withers, her heirs and assigns,” does not amount to a substitution. Indeed the authorities are clear on that point. Pothier on Substitutions, sec. 2, art. 1.
It is, however, contended, that a disguised substitution results from that clause which stipulates that the property shall revert to and become the property of the said William ‘ C. Withers, and his heirs.
This court has already decided in more than one case, that wherever it necessarily results from the language of the instrument, that a substitution was intended, its entire nullity must be pronounced. That it is of the essence of a substitution, that the original donee should be bound by the terms of the donation, to preserve the property given, for, and transmit it to another person or class of persons, which persons are appointed to take after the original donee, ordine successivo, and in derogation of the legal order of succession; ■ that it is, in fact, an attempt to control the transmission of property, after the title, transferred from the donor, and to give it a direction different from what the law would give it. 5 Toullier, No. 21, and Sey, Arnaud vs. Tarbe. 4 Martin, N. S. p. 45.
These principles equally apply whether the substitution results from the terms used in creating the donation, or under the disguise of a stipulated return. If there lurks a real substitution in the condition of return, as expressed by the
