92 So. 134 | La. | 1922
Plaintiffs are the widow and children of the late J. Ford Hodge, by a second marriage contracted in December, 1801, and defendants are the three sons of the deceased, issue of his first marriage entered into in the latter part of the year 1878. J. Ford Hodge died February 2, 1915, and this suit was filed August 8, 1919.
, Plaintiffs in substance charge that the late J. Ford Hodge bought, at various times between the years 1904 and 1912, eight certain tracts of land, that he paid the purchase price thereof, but had the titles taken in the names of Duke and Wesley J. Hodge, two of his sons by his first marriage, that said property, having been bought during the second community, should be declared to belong to that community, or one half to the surviving widow and the other half to all of his children, and that plaintiffs are entitled to have the same partitioned accordingly. Plaintiffs further allege, in the alternative, that, in case said lands cannot be restored, Duke and Wesley Hodge should be made to account for and collate the purchase price thereof. They further allege that Duke and Wesley Hodge owe to the succession of their father, J. Ford Hodge, $1,000, the value of a crop of cotton and agricultural implements which belonged to their deceased father and which they appropriated to their own use and benefit; that Duke Hodge received in money from lids father $2,000, and that Wesley J. Hodge received from his father $3,800, which amounts they should be respectively made to account for and collate to the succession of their father. They pray, accordingly, for relief.
Tobin R. Hodge, one of the defendants, made no appearance and permitted plaintiffs to obtain judgment by default. The other two defendants, Duke and Wesley J. Hodge, filed exceptions to the jurisdiction of the court and of no cause of action, which were overruled by the trial court and which are not pressed on this appeal. They then answered, denying all the facts upon which plaintiffs base the present action, and they filed pleas of prescription of 3, 5, and 10 years.
One of the tracts of land described in plaintiffs’ petition was purchased in the name of J. Ford Hodge in 1912, in consideration of $200. It is described under the number 8 in plaintiffs’ petition, it is admitted by all parties that it was sold for taxes, and it is not
The district court rendered judgment in favor of plaintiffs, recognizing the property in dispute as belonging to the second community existing between J. Ford Hodge and Ida Milling Hodge, and condemning defendants Duke and Wesley J. Hodge to account for and pay over the sum of $12,375 proceeds of part of that property sold by them to third persons, and ordering a partition as prayed for by plaintiffs. From that judgment defendants Duke and Wesley J. Hodge appeal.
In the early part of 1900, he had his oldest son, Duke Hodge, emancipated and gave him $4,000 with the distinct understanding that this was in settlement of the rights of his three hoys by his first wife, for their mother’s portion in the community of his first marriage. Duke was to settle with the other two boys, his brothers, as they arrived at majority. Duke engaged with this money, or part of it, in the grocery business in the city of Alexandria, but sold out that business in December, 1900, and deposited the proceeds of that venture in bank. It was out of this money that the purchase price of the first properties acquired by Duke and Wesley was paid. The other son, Tobin R., who is a nominal defendant in this case and the youngest of the three boys born of the first marriage, did not receive any portion of this money, until several years later, when Duke and Wesley turned over to him $3,000 in full settlement for his share of that fund, which they had used and enjoyed. The evidence further shows that Duke and Wesley were hard working and thrifty, that they did manual labor and farmed, and by their exertion were able to attend schools of medicine and to become physicians, though they both subsequently abandoned that profession to engage in other pursuits for a livelihood.
The testimony upon which plaintiffs rely to establish their contention consists of statements and admissions claimed to have been made by J. Ford Hodge to Mrs. V. E. Ellis, his surviving sister, to Joe Ellis, his nephew, to Dr. B. L. Hodge, his brother, and to Tobin R. Hodge, his son. Such testimony, at best, is of little probative force, especially in a case of this kind, where the facts sought to be proved are neither supported by nor consonant with surrounding circumstances. J. Ford Hodge died a poor man, and this suit was filed more than four years after his death. The declarations and admissions upon which plaintiffs rely were known by the son, the brother, the sister, and nephew of the deceased, and it is not likely that these admissions remained unknown to plaintiffs for over four years. The deceased himself is not likely to have ended his days in dire poverty without making an effort to recover what was due to him, if his sons Duke and Wesley owed him the amounts claimed in this suit. On the other hand, it is shown by the testimony of Duke and Wesley that the property which they bought was paid for from their own funds, and there is nothing improbable as to the manner in which they acquired and earned these funds. We do not believe that plaintiffs have proved their alternative demand against the two real defendants in this case, Duke and Wesley J. Hodge. The proof which plaintiffs offer in support of their last demand for $2,000 against Duke and $3,800 against Wesley J. Hodge rests on still weaker foundation. The district court ignored and therefore refused this part of the plaintiffs’ demand, and, we believe, properly.
For these reasons, the judgment appealed from is avoided and reversed, and plaintiffs’ demand is rejected, at their costs.