Jackson v. JacksonJackson v. Jackson
Miller Jackson brought these proceedings against Gilbert Jackson, his son, seeking the dissolution of an act of sale passed on July 31, 1975. He seeks rescission on the following variоus grounds: (1) lesion beyond moiety; (2) failure to pay the consideration; (3) mistake as to the nature of the document executed. Prior to trial plaintiff died, and Robert Jacksоn, the provisional administrator of his succession was substituted as plaintiff. The trial judge rendered judgment rescinding the purported act of sale, and decreed the subject рroperty to be an asset of the Succession of Miller Jackson. Gilbert Jackson, appellant, perfects this appeal.
Appellant raises various issues as to the findings of the trial judge. He complains first, that there were no allegations of fraud in appellee’s pleadings, and therefore the finding of fraud by the trial judge was error; second, that the recitations of an authentic act should not be penetrated by parol evidence; third, if parol evidence is allowed to provе lack of considerations paid; and, fourth, that the sale was in truth and fact a donation, and that the provisions of Articles 1559 and 1560 must be complied with in order to revoke same.
A summary of the pertinent facts is necessary in order to present a logical solution to these various issues. While confined in DePaul Hospital in the summer of 1975, Miller Jackson executed an authentic act of “cash sale” wherein he transfers the property located at 919 Cumberland Street to his son, Gilbert Jackson. The sale is datеd July 31, 1975 and provides for a consideration of $4,200.00 cash, which the father acknowledged receiving, and the son acknowledged paying. Miller Jackson executes the dоcument with an “X” mark in the presence of a Notary and three witnesses, and declares in said act that he has a physical infirmity which prevents him from signing in the usual way.
Shortly thereafter, Miller Jackson was released from DePaul and placed in a nursing home where he stayed until moving in with his brother, Robert Jackson. The evidence indicates that Gilbert Jackson placed his father in the nursing home without advising any other family members, and it was only through the efforts of his brother that Miller Jackson was removed from the nursing home. He lived with his brother until hе died on January 5, 1979.
The evidence presented at the trial is abundantly clear that no cash was paid by appellant at the time of the sale, nor at any other time. He admits this fact throughout the trial, and under cross-examination, specifically stated:
Q. “Have you ever paid a single dollar towards the purchase of this propеrty?”
A. “No”
However, appellant says that he should be allowed to present parol testimony and other evidence to prove that consideration, other than сash, had been paid. Specifically he claims that the trial judge refused to consider any testimony by the Notary, and the witnesses as to what his father said at the Act of Sale; and that evidence that appel
The proper starting point in the discussion of the validity of any authentic act is Civil Code Article 2236, which prоvides:
“The authentic act is full proof of the agreement contained in it, against the contracting parties and their heirs or assigns, unless it be declared and proved а forgery.” La.C.C. Art. 22S6
It is generally recognized that parol evidence will not be allowed against or beyond what is contained in acts, nor what may have been said before, оr at the time of making them. La.C.C. Art. 2276. Appellant cites these codal articles and the case of Miles v. Miles,
The first witness called by appellee was appellant, Gilbert Jackson, whо testified that he did not pay any money in consideration for the sale. There was no objection to that testimony, and we consider same to be an admission by appellant sufficient to allow further proof of no consideration. See Durham v. Evans,
Q. “And what was, there was nо $4,200.00 given on July 31, 1975?”
A. “No”
Q. “And what did your father say, how you were getting the property?”
A. “That he was going to give me the property.”
Q. “Okay. Was there any consideration of money being transferred?”
A. “No”
Q. “Any money transferred previously?” A. “No”
Appellant argues that he paid “somе bills” for his father, but was not specific as to amounts or dates of payment. As his testimony states:
“He wanted me to have the property for what I had done, for the bills that I pаid for him out of love for my father, that is what he wanted.”
This evidence, as it pertains to past considerations, should have been admitted into evidence by the trial judge. A review of same, however, convinces us that no consideration of any kind was paid. The trial judge’s exclusion of this evidence was harmless error in this particular case.
The appellant makes an alternative plea that should this Court find no consideration to have been paid, then we should consider the “sale” a donation by the fаther to his son. In doing so, he argues, Miller Jackson then could only attack same in accordance with provisions of Civil Code Articles 1559 and 1560. The argument of appellаnt is ingenious, however we cannot accept same. The Louisiana Supreme Court in Lewis v. Clay,
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*687 “. .. To prove by parol evidence a true and sufficient consideration, in оrder to sustain the contract made between the parties, is always permissible, where the rights of third parties are not affected thereby. . . . But to resort to such evidence for the purpose of contradicting or varying the contract entered into, in order to substitute in its place a contract of dissimilar nature, is plainly reprobated by the textual provisions of our Code — citing R.C.C. Arts. 1900, 2276.” id at 81
Our jurisprudence is replete with cases which hold that parol evidence is inadmissible to prove that a conveyance was actually a donation, rather than a sale. Perry v. Perry,
AFFIRMED.