Reimers v. HebertReimers v. Hebert
Lead Opinion
Plaintiff appeals from a judgment maintaining an exception of no cause or right of action.
In the second paragraph of his petition plaintiff alleges that on or about February 9th, 1926, he purchased a lot of ground situated in Lake Arthur, with improvements, from defendant, for thе sum of $500.00. In the subsequent paragraph he alleges that on the same day, as part of the purchase price,. he handed to defendant a check of $100.00 which was collected by the latter at the Calcasieu National Bank of Southwest Louisiana. Thereafter, hе alleges defendant was to furnish a complete merchantable title to the premises, and was to execute and deliver a good sufficient warranty deed, conveying the property to petitioner, for the price of $500.00 cash, and on delivery of the abstraсt and deed, the balance of the purchase price, $400.00, petitioner was to pay in cash; that the abstract was delivered to petitioner March 3rd, 1926, when he was informed by defendant that the latter would
Plaintiff further allegеs that March 11, 1926, he received a letter from John P. Pournet, defendant’s attorney, demanding that plaintiff pay the $1400.00, in default of which defendant would no longer be bound by the oral agreement to sell the property to petitioner; that on March 17, 1926, the said attorney wrote plаintiff another letter, threatening that if plaintiff did not pay the $1400.00 by March 20, defendant would require plaintiff to tear down and remove at his own expense the improvements he had made on the property. Then follow averments showing the amount plaintiff alleged he incurred .for improvements on the property in labor and materials in addition to the $100.00 plaintiff alleges he paid defendant on the purchase price.
Petitioner further alleges “that while the sale and purchase were made on an oral understanding that the check, the deеd and the letters of the defendant and his attorney, are such as to establish the existence of a contract of sale, etc.”
Petitioner further alleges he is entitled to have the deed reformed or corrected so as the consideration expressed will bе the true consideration of $500.00 which was agreed upon; that defendant should be compelled to deliver petitioner such a deed and accept the balance of the purchase price, to-wit, $400.00.
In the alternative, plaintiff asks that he remain in possession of the property until he is paid by defendant for the former’s expenses in material, labor and for the $100.00 paid defendant, or until the enhanced value is paid plaintiff.
Plaintiff, in the alternative, again asks, if the above proposition be denied, that he have a privilege enforced against the property for the labor and materials expended thereon. Still in and only in the alternative, he pleads that because of the fraud, deception and chicanery of defendant, or for his breach of contract, he be condеmned for the several sums set forth in the petition with legal interest from judicial demand.
Finally, plaintiff prays defendant be ordered to execute a deed upon plaintiff paying him $400.00, and, in default thereof, the judgment of the court operate as a transfer of title to the prоperty, and he prays, in the alternative, for relief under his alternative demands hereinabove referred to.
The foregoing synopsis embodies the allegations of the petition which are pertinent to a proper solution of the issues presented for decision.
In the excerpt quoted above from the petition, plaintiff alleges that while the sale was made on an oral understanding, the deed, check and letters of defendant (which letters the record shows were Written by his attorney) are such as to establish the existence оf a contract of sale.
The deed to which plaintiff refers was for $1500.00, and certainly shows no title
The letters of the attorney, even if they could be taken as binding on the defendant, show that the price claimed by defendant was $1500.00 and which at the same time carried a demand by defendant that the improvements made on the property should be rеmoved, unless plaintiff accepted the sale at $1500.00. It is therefore clear that the check, deed* and letters taken separately or collectively make no proof of a sale for $500.00 for which plaintiff contends. The only way plaintiff could establish his title wоuld be by showing that the real price which had been agreed upon was five hundred dollars. If the case went to trial on the merits, plaintiff would be compelled to prove by parol in accordance with the oral understanding which he alleges, and as against the testimony оf defendant, that the true price was not for $1500.00, but was for $500.00. Obviously, to allow this, would be to permit the establishing of title, to real estate by parol. In order, we presume, to get around this difficulty plaintiff therefore alleged that defendant had by fraud, deception and to rob him of his rights, executed a deed for $1500.00, wjhich he deposited with the Calcasieu Bank but required before its delivery to plaintiff that the latter should pay $1400.00, being the amount defendant claimed from plaintiff. In referring to this allegation of fraud, plaintiff contends that fraud “cuts down everything”. In a sense this is true, as the allegation of fraud may be employed to open the way for the annullment or destruction of a sale or contract affecting real estate, but it has not the virtue of investing itself with the power of proving title to immovables by parol in spite of the law which requires suсh titles to be in writing. This can not be done as parol evidence is inadmissible under allegations of fraud or deception to establish title to real property. Baudus vs. Conrey,
This contention is grounded on Article 1900, Civil Code, which reads as follows: “If the cause expressed in the consideration should be one that does not exist, yet the contract can not be invalidated if the party сan show the existence of a true and sufficient consideration.”
In Dickson vs. Ford,
Parol evidence, as explained in that opinion, is allowed to show the cause or origin of the obligation, but not when it goes against or beyond the Act, as a contradiction to its recitals, but only when in effect it is offered to supplemеnt necessary information omitted therefrom. Here-, plaintiff alleges that he is entitled to have the deed reformed and corrected so as the consideration expressed will be true consideration of $500.00 which he avers was agreed upon, and he prays that dеfendant be ordered to execute such a deed or else that the judgment of the court operate a transfer of title.
Evidently, if parol evidence were permitted to be introduced for that purpose it would go squarely against or beyond or contrary, to thе recitals of the deed which say that the price or consideration.
We now pass to the consideration of the pleas in the alternative urged by plaintiff.
A possessor in good faith is he who has just reason to believe himself the master of the thing, as haрpens to him who buys a thing which he supposes to belong to the person selling to him, etc. It may be that the purchaser is mistaken, but he must, at least, have bought the thing. In this case, it is clear from the allegations of the petition that plaintiff had a mere oral understanding to buy, and made imрrovements on the property without having title thereto. He assumed the quality of owner without title and was therefore not a possessor in good faith, but was one in bad faith. C. C. Art. 3451, 3462. As it appears from the allegations of the petition that plaintiff was a possessor in bad faith he hаs no right to recover for the improvements or enhanced value of the land. Boagni vs. Stamen,
In his last alternative plea, he asks damages for the several amounts claimed in damages for the deception and fraud alleged to have been practiced on him by defendant or for the breach of the contract or oral agreement.
In Baudus vs. Conrey,
Plaintiff has a cause of action for the recovery of the $100.00 which he alleges he has paid on his oral agreement with
It is therefore ordered, adjudged and decreed that the exception of no cause of action be maintained and the judgment be affirmed as to all the demands of the plaintiff, with the exception of the claim for the $100.00 and value of improvements as above restricted; that in that respect the exception be overruled, and the judgment below be reversed; and that this case be remanded to be proceeded with according to law on the two propositions above dеtailed and specified; defendant to pay cost of this appeal; those below to await the decision of this case.
Concurrence Opinion
concurring.
In my opinion plaintiff seeks in this suit to establish a contract creating title to immovable property by parol evidence, and, in the altеrnative, if he is not permitted to do so, to obtain an award in damages for the violation of the contract. It is obvious that if he can not prove or establish the existence of the contract, neither can he prove that it was violated, for there would then be nоthing to violate.
The law is that though title to immovable property may, for fraud, error, etc., be destroyed by parol, it can under no circumstances, not even under charges of fraud, be created by that kind of evidence. Hoffman vs. Ackerman,
Where a contract cannot be proved by parol in a suit for its specific performance, neither can it be proved by parol in a suit in damages for its non-execution. Kaplan vs. Whitworth,