108 So. 483 | La. | 1926
On October 20, 1920, A.B. Avery, a resident of this state, brought suit for separation from bed and board (on the ground of alleged abandonment), against his wife who had resided with him in this state for 20 years, and up to within two years of the filing of said suit, all under the community régime prevailing in this state. R.C.C. arts. 2400-2406. That suit was never tried, and still stands as though pending.
On September 19, 1921, whilst said suit was still pending, Avery realized and received in cash some $15,000, being the result of fortunate investments made by him in the years 1919 and 1920.
On September 20, 1921, the day following *284 the receipt in cash of the $15,000 aforesaid, he went to the office of the Shreveport Mutual Building Association, and there took out and paid for $15,000 of the capital stock of said association, being 75 shares of the par value of $200 each; said shares being represented by certificates, as required by section 8 of Act No. 267 of 1914, p. 526, and being "personal property" as declared in said section.
Of the (two) certificates issued, one, No. 1481, was for 50 shares of the par value of $10,000, and the other, No. 1482, was for 25 shares of the par value of $5,000. Which certificates he caused to be issued in the name of "Mrs. Mary D. Dickey," who is one of the defendants here, the other defendant being the building association aforesaid; but said certificates were delivered to himself, and were receipted for by him, and he left the office of the building association in possession thereof.
On March 10, 1922, the day after his death, the defendant Mrs. Mary D. Dickey presented to the building association the certificate No. 1481 for 50 shares, and, upon surrender thereof, duly indorsed by her, was paid in cash (by check) the full par value thereof, $10,000. With that certificate we are not presently concerned, since neither the certificate nor its proceeds have ever come into the custody of the court, and the defendant, Mrs. Dickey, is (and was) a nonresident, though present in the state on March 10, 1922, as aforesaid, and also on March 11, 1922, on which day she cashed the building association's check for the proceeds of said stock, and on which day she also claimed, to a member of the family of the deceased, that he had donated said stock to her.
The other certificate, No. 1482, for 25 *285 shares of the par value of $5,000, remained in the possession of Avery, and was found among his effects at his death.
We think that the whole transaction was a simulation pure and simple, done by the husband for the sole purpose of covering up the property and screening it from the knowledge and claims of his wife. *286
And we are here indulging in no mere conjectures, but drawing conclusions "weighty, precise, and consistent" from the undisputed facts as we have stated them. R.C.C. arts. 2284, 2288.
Nor has the defendant done aught to rebut the presumption which flows from the facts recited.
She did not appear in defense of this suit in the lower court, being therein represented only by a curator ad hoc; she did not testify in the case either in person or by deposition; eighteen days after the death of Avery, being also only sixteen days after having cashed at par $10,000 of said stock, she sold the other $5,000 of stock for one-tenth its par value (i.e. for $500 to one A.G. Muller (intervener herein) also a nonresident; and hence at the time this suit was filed apparently had no further interest in said stock other than as warrantor. See section 10 of Act No. 180 of 1910, p. 267.
All these are circumstances which, far from rebutting, tend strongly to confirm the conclusion which we have reached from the facts first stated.
We presume that the writ was resorted to only in a (vain) effort to seize upon the other stock not in the possession of the administratrix; and hence, as aforesaid, it is immaterial for the purposes of this case whether an attachment, or a sequestration, or no writ at all, issued in this case. The 25 shares are in the custody and therefore within the jurisdiction of the court, which may therefore deal with it for all purposes. See Direction Der Disconto-Gesellschaft v. U.S. Steel Corporation, supra.