Haney v. DunnHaney v. Dunn
This сase was previously transferred by us to the Supreme Court,
Pursuant to plaintiff’s prayer, the District Court rendered judgment ordering partition in kind between plaintiff Isaaс Haney and defendant Gladys Dunn of a 53-acre tract of land lying on Plank Road about 12 miles north of Baton Rouge. Defendant appealed from the judgment insоfar as it recognizes plaintiff as owning a one-half interest in the tract in question. Defendant denies that plaintiff has any interest whatsoever in the propеrty, and alternatively argues that plaintiff’s interest cannot exceed one-fourth.
On October 17, 1938 the tract in question was purchased by Oscar Planey, brother оf plaintiff (Isaac Haney), during the existence of a marital community between Oscar Haney and Laura Hughes Haney. This marriage and community was dissolved by divorсe on May 12, 1941. On September 27, 1943, Oscar Haney by cash sale sold the entire tract in question to Gladys Dunn, defendant-appellant. (Subsequently, Oscar Haney and Gladys Dunn were married.)
Plaintiff’s interest in the land is based upon his purchase on October 5, 1943 of an undivided one-half interest from Laura Haney, the first (divorced) wife of Oscar Hаney. Laura Hughes’ interest in the property of course resulted from its acquisition during her subsequently-terminated marriage to Oscar Haney.
In urging that Isáac Haney was divеsted of all interest in the property, defendant-appellant chiefly relies upon a receipt signed by plaintiff-appellee (about six days after his purchase of Laura Hughes’ one-half interest), which reads in full:
"Oct. 11, 1943 “Received the sum of $349.42 from Oscar Haney.
“sign
"Isaac Haney.”
Certain parol evidence was introducеd, subject to plaintiff’s objection
Based upon this testimony, able counsel for defendant-appellant argues: (a) that since the community of Oscar and Laura Haney owned only one-half of the tract, then at dissolution thereof Laura’s one-fоurth (Y2 of 1/2) was all that plaintiff
We think the District Court correctly held the parol evidеnce so tendered to be inadmissible, both:
(1) To prove that Isaac Haney, although unnamed in the 1938 deed, was a co-purchaser of the tract with Oscar Haney. Parol evidence is not admissible to prove that the purchaser of immovables was in reality some other person than the purchaser nаmed in the act of sale, and thus by such testimony to create title in said unnamed purchaser, Articles 2275, 2276, 2440, LSA-Civil Code; Ceromi v. Harris,
(2) To prove that the receipt above quoted in full was a sale by plaintiff of any interest whatsoever in the land in question. Where a receipt was even more explicit (stating that it was for “payment on place”, without describing the land sold), the Supreme Court held that parol еvidence was inadmissible to establish the identity of the land sold; since although admissible in aid of a defective or ambiguous description, parol evidence can only be so used where there is a sufficient reference in the writing so that the title is based substantially on the writing and not essentially on the parol. Lemoine v. Lacour,
Furthermore, the inadmissible parol tеstimony of both Isaac and Oscar Haney reflects that at the time Isaac advanced certain sums to Oscar to be used on the purchase price of the land herein involved, no clear understanding was reached between the two as to whether Oscar was purchasing the land for both of them, or whеther Isaac was lending Oscar the money to be repaid when the land was sold. At various places in their testimony, both of them testified that both of these cоntrary intentions were correct. Because of this, and aside from other reasons why such evidence is not admissible to prove title to real estate, we cannot accede to the ingenious argument of counsel for appellant that a letter of September 25, 1943 bj counsel for plaintiff to Oscar Haney after a controversy arose, claiming for plaintiff an interest in the property in question
Defendant-appellant further urges, in appellate brief for the first time, that the judgment of partition should recognize that she owns individually her residence which was erected on the land subsequеnt to plaintiff-appellee’s acquisition from Laura Haney of his one-half interest in said tract. Whether the house indeed belongs to defendant as an improvement made by the owner on land owned by her, Articles 505, 506, LSA-Civil Code, Moore v. Blount, La. App. 2 Cir.,
A partition in kind was ordered which, the еvidence shows, contemplates defendant receiving acreage upon which her residence is situated equal in value to the acreage plaintiff shall receive, upon which is situated the house occupied by plaintiff and his (and Oscar Haney’s) mother. When the partition is presented for homоlogation, Article 1374, LSA-C.C., either party has the right to file a written opposition insofar as they object to the partition presented as prejudicial, Artiсles 1375-1377, LSA-C.C.
For the above and foregoing reasons, the judgment appealed from is affirmed.
Affirmed.
Notes
. Objection to a question as to bow Isaac Haney’s interest in the property arose: “We have introduced a certified copy of the act of sale. The Court: Let it in, subject to the objection.” (Tr-66; see also Tr-71, 72.) We disagree with defendant-appellant’s contention that the above objection was not sufficient to preserve plaintiff’s objection to thе use of parol evidence to prove a sale of and title to immovables, contrary to Article 2275, LSA-C.C.; although admittedly the objection could havе been more explicit, as it was at Tr-71, 72.
. Recognizing the weakness of the latter argument, since Oscar Haney frankly admitted he had not intended to purchase Laura’s share, because he did not realize she owned same, defendant alternatively argues that the receipt merely conveyed Isaac’s own one-half and that Isaac retains merely the one-fourth he acquired from Laura Haney.
. Which interest was at that time denied by Oscar Haney, whose рosition then— before Isaac acquired Laura’s outstanding interest in the property- — -was that the sums advanced by plaintiff Isaac Haney were merely a loan to enable Oscar to buy the land.