52 La. Ann. 1719 | La. | 1900
The opinion of the court was delivered by
This is a petitory action, brought against James Bayhi, who is in possession, for the recovery of certain real estate, situated in the parish of St. Bernard, which the plaintiff claims to have purchased
Defendant answers that he holds said property, as owner of one undivided half interest, and by the authority of Gustave Bayhi, his brother, who owns the other undivided half interest; that his brother and himself are the sole heirs of Honoré Y. Bayhi, who owned said property, and was in possession ¡thereof at the time of his death; that the act of sale relied on by the plaintiff, if consented to by said Honoré Y. Bayhi at any time, was obtained from him, not upon May 19, 1899, but a few days before his death, when his mind was enfeebled by disease, and through fraud, error, misrepresentation, and duress, and without consideration. The respondent then assumes the character of plaintiff in reconvention, and claims the value of certain movable property, said to have been taken possession of by plaintiff, together with damages alleged to have been sustained by him by reason of its removal, and he prays for judgment rejecting the plaintiff’s demand, and decreeing the act of sale sued on to be null. Gustave Bayhi, intervening, alleges that he and James Bayhi, the defendant, are the sole children and heirs of Honoré V. Bayhi; and that he is the administrator of the latter’s estate, and his intervention contains, in other respects, substantially the same averments as are to be found in the answer of James Bayhi.
The evidence shows that Honoré Y. Bayhi, the father of the defendant and the intervenor, was nearly eighty years old at the time of his death; that some four or five years prior thereto he had married, as his third wife, a widow lady, with three children, to whom he made an ante nuptial donation of one-third of his estate, or rather of an undivided third interest in the property here claimed, which was his home, and, with the exception of some little movable property, constituted his entire estate; that several months before his death, he had been stricken with a mortal illness, as the result of which he grew more and more feeble, so that he became, successively, bed-ridden, childish, and moribund.
There is a serious question as to his mental condition upon May 19, 1899, the day upon which the plaintiff claims that he executed the act of sale sued on, but there is none as to his physical condition, for, whether it was done on May 19th or June 7th, it is shown that he was confined to his bed, and that his wife supported his arm when he signed said act; and there is no question as to either his mental or physical
The counsel for the plaintiff suggests that fraud is not to be presumed, and that merely to make the charge, throws no burden of proof upon him against whom it is leveled. This proposition, as stated, may be accepted as sound in law, but it does not meet the requirements of the present case, in which the facts disclosed are unusual, and require explanation. Without going into' all the details, it is sufficient for present purposes, to say — -that it has been shown that Honoré Bayhi had two sons by his first marriage, who are now over fifty years of age; that one of them, James, has always lived with his father and continued to do so up to the time of his death; that, with the exception of some furniture, of inconsiderable value, the property in question, being their home, was the only property which the father possessed; that, at the age of 75 or 76 years, he donated one-third of said property to a widow lady, and thereafter ¡made her his third wife; that when, within a few months of his 80th year, he was stricken with a disease, of which he subsequently died, and, whilst suffering therefrom, enfeebled to such an extent that he was confined to his bed, and it was necessary that his wife should support his arm when so doing, he is said to have signed an act whereby he sold said property for $3,000, in cash, which amount was received by his wife, from the hands which were too weak to retain it; that neither his son, who lived in the house, nor any of his relatives or neighbors, who lived near; knew anything of the transaction at the time, or heard of it until pight days after his death; and that there was no change, or suggestion of change, of possession, in the meanwhile;,that no reason is given or suggested why this old man, on his death bed, should have sold the roof over his head; that no part of the three thousand dollars, which is said thus to have been paid to him a few weeks before his death, was
We are of opinion that there was error in the ruling of the trial judge, in refusing to the defendants the opportunity of obtaining the testimony of Mrs. Bayhi; that it is possible that counsel for the plaintiff erred in the advice given to his client that the latter should withhold his testimony; and that the interests of justice will be best subserved by remanding the case.
It is therefore ordered, adjudged and decreed that the judgment appealed from he annulled, avoided and reversed, and that this cause be remanded, with leave to the parties, respectively, to introduce such further evidence and otherwise proceed as they may be advised, the costs of the appeal to be paid by the plaintiff, and those of the lower court to await the final determination of the cause.