Fleury v. FleuryFleury v. Fleury
The litigants were married to each other in 1913. During the year 1920 the defendant-husband acquired in his name certain immovable property, a double cottage designated by the municipal Nos. 818-820 Upperline Street in Square No. 196 in the Sixth District of New Orleans. Because of a fear of losing the property as a result of business difficulties, title thereto was transferred to the plaintiff-wife by means of the usual sale and resale through a local homestead association. Plaintiff and defendant separated in 1926 and lived separate and apart continuously thereafter, although neither ever filed suit for a separation from bed and board. Later, in 1927, defendant encountered further business difficulties, being confronted, among others, with a suit subsequently reduced to a money judgment against both himself and his wife, and title to the property was transferred from the wife to a Miss Mary Sullivan, a mutual friend of both litigants. In 1933 Miss Sullivan transferred the property to plaintiff by a cash act of sale which recited that plaintiff was buying the property with her own separate funds, under her separate administration and control. In 1937 the husband secured a default judgment of divorce on the grounds of continuously living separate and apart for more
Plaintiff filed this declaratory action in which she seeks a judgment recognizing the property as separate and paraphernal, with the defendant having no interest therein. Defendant answered praying that the property be recognized as forming a part of the community of acquets and gains formerly existing between the litigants and that the litigants be decreed equal owners in indivision.
Property purchased in the name of either spouse during the marriage and the existence of the community of acquets and gains is presumed to be a part of that community and the status of such property is fixed at the time of its purchase. However, where the wife buys property in her own name she may overcome this presumption by showing that the funds constituting the price paid for the property were paraphernal funds, that they were administered by her, and that they were invested by her. The proof necessary to overcome the presumption must be strict, clear, positive and legally certain.
We are satisfied that plaintiff has failed to carry her heavy burden of proof in connection with her acquisition from Miss Sullivan in 1933 for a cash consideration of $2,000.00. Only two witnesses testified on this question, Mr. Barnett, an attorney and official for a local homestead, and the plaintiff herself.
Mr. Barnett testified that he knew the plaintiff and that for many years she had done “fine sewing” for many families including his own, earning as much as $5.00 per day with her work. He also established that the homestead records revealed that plaintiff had invested $800.00 in homestead stock in the years 1928-1930 and $500.00 in 1947, the former amount being withdrawn in 1952 and the latter withdrawn at some unknown date. It is obvious, of course, that none of this money so invested could have been applied to the cash purchase from Miss Sullivan in 1933.
The plaintiff testified that she had worked hard continuously since she was twenty years of age with her sewing. By this method she had accumulated $300.00 prior to her marriage, all of which was used to buy furniture which was brought into the marriage. (No claim is made that plaintiff had any separate funds or property at the time of the marriage). Her husband had never supported her well and made no contribution to the repairs and upkeep of the house. She purchased the property in 1933 from Miss Sullivan with money she had worked for and saved herself. She had used the rents to live on. She admitted that some of the money used by her to buy the property from Miss Sullivan was money that she had made by her work and saved during the thirteen years (1913-1926) she was married to and living with her husband.
This is insufficient proof to establish paraphernality of the property. Her testimony, completely unsupported by any other evidence of any kind except the above mentioned testimony of Mr. Barnett, is couched in generalities only. She says that she worked, earned money and saved. But she mentions no amounts, specific or otherwise, except rentals of $18.00 per month during the time that the property stood in the name of Miss Sullivan. In
The property is community and there is no need for us to determine the effect of the simulated sale or sales.
Plaintiff contends that she is entitled to the judgment for which she prays, even though the property be adjudged community at the time of the divorce, because of prescription, estoppel, delay and laches, and renunciation.
She relies on the prescription of ten years as contained in
In support of her contention as to estoppel plaintiff cites authorities to the effect that parties are generally estopped by their pleadings in judicial proceedings and particularly are estopped from contradicting in a subsequent action what they have judicially admitted or averred to be true in a previous action between the same parties. Neither this rule nor the cases cited in support thereof are applicable. The defendant‘s petition for a divorce is simply devoid of any allegation as to the existence or nonexistence of community property. It follows that the defendant‘s present position and claim can contradict nothing which he had alleged in his divorce petition; he cannot contradict what he has not said. Nor do we know of any law, and none has been pointed out to us, which requires a plaintiff in a divorce suit to allege the existence or nonexistence of community property.
In connection with her contention as to delay and laches plaintiff argues that she has been damaged by the passage of some 23 years from the time the defendant could have asserted his claim in the divorce action, which passage of time has made practically impossible proof of payment of the purchase price with paraphernal funds and for this reason there should be judgment in her favor. The contention is not well founded. As pointed out above, we
The final contention is based on the argument that by not asserting his claim defendant has impliedly renounced his interest in the property. Plaintiff relies on the holding in the case of Simmons v. Hanson, 228 La. 440, 82 So.2d 757. In that case there was an express renunciation of a succession in which the person renouncing appeared as a widow in community and the question was whether or not she thereby also renounced as an heir. In holding that she had renounced in both capacities, the court was not concerned with an implied renunciation. It was concerned only with the extent of an actual renunciation. Therefore Simmons is neither controlling nor applicable in the instant case. The contention of implied renunciation is essentially the same as that made with regard to delay and laches and is not well founded.
Upon the dissolution of the community of acquets and gains by a judgment of divorce or separation from bed and board, property forming part of that community ceases to exist as such and the husband and wife each hold an undivided one-half interest therein. Smith v. Marino, La.App., 28 So.2d 780, rehearing denied La.App., 29 So.2d 390; Daigre v. Daigre, 230 La. 472, 89 So.2d 41.
For the reasons assigned the judgment appealed from is annulled and reversed, and it is now ordered that there be judgment in favor of the defendant and against the plaintiff recognizing the following described property as having formed part of the community of acquets and gains formerly existing between the litigants herein and recognizing and decreeing each of said litigants as the owner of an undivided one-half interest therein to wit:
A Certain Portion of Ground, together with all the buildings and improvements thereon, and all the rights, ways, privileges, servitudes and appurtenances thereunto belonging or in any wise appertaining, situated in the Sixth District of New Orleans, in Square No. 196, bounded by Upperline, Magazine, Constance and Robert Streets, being Square No. 196; which portion of ground forms the front portion of Lot No. Twelve on a plan of J. F. Braun, Architect, dated April 25th, 1887, deposited as Plan No. 72, in the office of A. Hero, Jr., Notary Public, and measures thirty feet front on Upperline Street by a depth of Ninety feet between parallel lines, designated by the Municipal Nos. 818-820 Upperline Street.
Being the same property acquired by the plaintiff herein by act registered in COB 472, Folio 444.
In view of the unusual circumstances involved, it is further ordered that each litigant bear one-half of all costs.
Reversed and rendered.