83 So. 643 | La. | 1920
Statement of the Case.
Plaintiff prosecutes this appeal from a judgment sustaining an exception of no cause of action and dismissing his suit.
The petition alleges that on January 6, 1915, he sold certain land, of which he was the owner (though the title stood in the name of, and the sale was made through, Joseph A. Grace), to his son, John Hurley, for $2,500, and took his note therefor, secured by mortgage and payable, with interest, at the expiration of five years, and that the sale was duly recorded; that, on or about November 22d following, he delivered the note to defendant on condition that defendant would take care of him for the balance of his (petitioner’s) life, and that defendant caused said note and the mortgage by which it was secured to be canceled and erased; that the giving of the note was null, having been without consideration and not by authentic act; and that petitioner revotes said gift and avers that it should be decreed that the note be returned to him and' the mortgage reinstated.
In the alternative, it is alleged that defendant complied with his agreement to take care of petitioner until about the end of February, 1916, when, by reason of his ill treatment, petitioner was obliged to keep away from his (defendant’s) farm; that on May 15, 1916, defendant abused and threatened petitioner, in the presence of strangers, and said he was sorry he had not knocked his block off, long ago; that on July 15,1916, when the sheriff took possession of the live stock seized in the suit No* 2051 of the docket of the district court, defendant threatened the life of petitioner, using vile and obscene language, and making such threats that, upon the suggestion of the sheriff, or his deputy, petitioner did not go on the grounds of defendant; that defendant has further been guilty of ingratitude and given further cause for the- revocation of the donation in question, under C. O. art. 1559 et seq., by his curses and abuse of petitioner on the occasion thus mentioned, when he refused to let petitioner have his live stock, which defendant unlawfully retained.
The prayer of the petitioner is for a judgment decreeing the nullity of the donation of the note, because not made by authentic act, or, in the alternative, because of the ingratitude of the donee, decreeing the return of the note to petitioner, and the erasure of the mortgage by which it is secured (the clerk and ex officio recorder being a party defendant). *
Opinion.
“Donations inter vivos are liable to be revoked or dissolved on account of: * * * (1) The ingratitude of the donee. (2) The nonfulfillment of the eventual conditions, which suspend their consummation. (3) The nonperformance of the conditions imposed on the donee,” etc. C. C. art; 1559.
See Baker v. Baker, 125 La. 969, 52 South. 115; Eskridge v. Farrar, 30 La. Ann. 718.
“The manual gift, that is, the giving of corporeal movable effects, accompanied by a real delivery, is not subject to any formality.”
So that, in so far as plaintiff’s claim is based upon the ground that the donation was not in the form of an authentic act, the exception was properly sustained; but, otherwise, it should have been overruled. The cases of Hicks v. Hicks, 145 La. 465, 82 South. 415, and De L’Homme v. De Kerlegand, 4 La. 353, cited by defendant, deal with unconditional donations and are inapplicable here. It appears that Daniel Hurley, the original plaintiff, died after the institution of this suit, and, on proper showing, his testamentary executor has been substituted in his place.
For the reasons thus assigned, it is ordered, adjudged, and decreed that the judgment appealed from be set aside, the exception of no cause of action overruled, in so far as it is leveled at the complaint of noncompliance, on the part of defendant, with the condition upon which the donation here attacked was made, and that the case be remanded, to be proceeded with according to law and to the views hereinabove expressed; defendant to pay the costs of the appeal, and the costs of the district court to await the judgment on the merits.