107 La. 549 | La. | 1901
The opinion of the court was delivered, by
Fred. P. Rush and George E. Townley, residents of Indiana, and original plaintiffs herein, in February, 1900, obtained
Interrogatories were accordingly propounded to, and answered by. the intervenor, under a commission executed at her residence, in Indiana, and 1hc commission was duly returned, and made part of the record. The inte,-venor was, also, sworn as a witness in her own behalf, and testified orally; other evidence was adduced, and'the case was argued and submitted, and decided in favor of the intervenor on the question of title, and in favor of the defendant by judgment of non-suit. And, from ;he judgment so rendered, the plaintiffs prosecute this appeal. In the course of the execution of the commission under which the intervenor answered the interrogatories on facts and articles, the
The Code of Practice provides that “both plaintiff and defendant” may propound interrogatories on facts and articles (Art. 347), and die answers are given the same effect whether made by the one or the other, .and irrespective of the burden of proof. The plaintiffs correctly assumed that, as they occupied the position of defendants, quoad the claim set up by the intervenor, they were entitled to propound such interrogatories to her, and, if this be true, there can be no reason why her answers should not be given the effect that would be accorded to those of a person occupying the position of plaintiff eo nomine. Prior to 1870, Article 354 of the Code of Practice read as follows: “The answers of the party “interrogated are evidence, but do not
It is true that, under the Code of Practice as now written, it is well settled, as it was well settled before the .amendment, that, as between the parties to a sale of real estate, there are but two ways of impeaching the title, which is required to be in writing, the one, by means of a counter letter, and the other, by interrogatories on facts and articles, and that, when answers to such interrogatories are substituted for the counter letter the title thus established can no more be impeached by parol testimony than if established in any other written form. Semere vs. Semere, 10 Ann. 704; Godwin vs. Newstadtl, 42 Ann. 735. This rule of exclusion applies, however, only to the parties to the instrument attacked and does not apply to third persons. Benoit vs. Broussard, 19 La. 387; Blake vs. Hall, 19 Ann. 52; Finley vs. Bogan et als., 20 Ann. 444; Carey vs. Richardson, 35 Ann. 505. We conclude, therefore, that, for the purpose of this case, the answers of the intervenor to the interrogatories on facts and articles are entitled to no greater effect than her oral testimony, given in her own behalf.
Counsel for plaintiffs also objected, in the course of the trial, to the proof of any other consideration for the conveyance to the intervenor of the property in controversy than that evidenced by the written instrument, and the objection was overruled. But, as the counsel, themselves, appear to have opened the door .to such proof by their interrogatories on facts and articles, and as they do not refer to the matter in their argument before this court, we assume that the objection in question, like the other, has been abandoned, and, for this reason, we make no ruling concerning it.
Proceeding upon the basis thus established, it appears that, in January, 1894, Franklin Landers, the husband of the intervenor, conveyed to his wife a number, of pieces of real estate, in Indiana, eon- ’ sisting of farms, town lots, etc., concerning which it is claimed, on 'behalf of plaintiffs, that the aggregate value was $158,051.00 and that the mortgages with which they were burdened amounted to $86,865.00,
As to the consideration for the conveyance of the Indiana property, it appears, that, by the law of Indiana, which plaintiffs have proved, tenancies by curtesy, and in dower, have been abolished, and a married woman is given- one inchoate one-third, one-fourlh, or one-fiifth interest, varying, quoad the debts of her husband, with the value of the property, in all real estate acquired by her husband during the marriage, or in which he may have an equitable interest at the moment of-his death, which inchoate interest becomes absolute upon the death of the husband, or upon the forced alienation of the property during his life, unless the wife has previously joined him in such alienation, or in imposing incumbrances importing the right to alienate; provided, that the wife may elect to take under the will of her husband, if there be one; and provided, also, that in case of judicial sales of• such real estate where the value exceeds $20,000.00 her interest becomes absolute only up to that value (Revised Statutes of Indiana, sections 2482, 2483, 2491, 2499, 2508, 2509.)
It is admitted, by the argument, that the intervenor had a valuable interest, under the law of Indiana, as above recited, and it is not denied that she parted with it in joining her husband in mortgaging or selling (he property to which it attached. ISTor is it denied that it was competent, under the law of Indiana, for the husband to make that interest good, by the conveyance to the wife of real estate there situated. It is also, virtually, admitted that this court will be justified, from the evidence in the record, in holding that the intervenor had placed in the hands of her present husband $5400.00, with the accretion thereto, which she had received from her first husband and his estate, and that the same had not 'been returned to her, or otherwise accounted for, prior to the month of January, 1894. And, from these premises, counsel for the plaintiffs present an argument involving several propositions of law which may be conceded with certain modifications not material to the plaintiffs’ ease. Thus, it is conceded that the validity of a conveyance of real estate lying in Louisiana is to be determined by the law of Louisiana, and that the capacity of persons occupying the relation of husband and wife to deal with, each other with respect thereto is to be determined by the same law. It is also conceded that, under the law of Louisiana, a sale between husband and wife can take place only for the considerations stated in the law itself; that, where such salé purports to have been made for some other consideration it is invalid, upon its face, and, if attacked, by a party having sufficient interest, the burden of proof, whenever such proof is admissible, rests upon the party seeking to maintain its validity to show that the real
The learned counsel then proceed as follows:
1. It having been shown that the common law has been adopted in Indiana, and it not having been shown that it has, in that respect, been modified by statute, this court will assume, agreeably to the common law rule, that the husband of the ■ intervenor owed her nothing on account of any money belonging, or said to have belonged, to her, which may have been received and converted by him, and hence, that there was no consideration, which the law of Louisiana will recognize, to validate the conveyance of the property here situated.
' 2. If the position, as thus stated, be not sustained, then, that the verbal promise of the husband, to make good, by conveyance of real estate in Indiana, the interest of which the intervenor had divested herself for his accommodation, was not enforceable, in view of the provisions of the Indiana Statute of Frauds (which the counsel have offered in evidence) on the subject of verbal contracts relating to real estate. And;
3. That the net value, after deducting the mortgage debt, of the Indiana property conveyed to the intervenor exceeded the value of the interest which she claims it was intended to make good, and hence, that it should be held that such conveyances also operated to extinguish the claim for money received and converted.
The propositions 2 and 3 will first be considered in their order as stated above. In support of proposition 2, we are referred to the case of Worth vs. Patton, 5 Ind. App. 272, in which it appeared that the husband desired to convey certain lands to the children of a former wife and that he, verbally, promised the wife that, if she would join him in such conveyance, thus releasing her inchoate interest, he would convey to her certain other real estate, which promise was accepted and
Proposition No. 3 appears to us to involve a reon sequitwr, since, assuming that the net value of the Indiana property conveyed to the intervenor exceeded that of the interest which she claims it was intended to make good, it would not follow that the parties intended the excess in value to be attributed to the extinguishment of the claim for personal funds had and converted by the husband. There are other hypotheses to be taken into account. Landers may have intended to convey the property to his wife for an inadequate consideration, or he may have believed, the opinions of the witnesses who have been examined in this case, or the fact, if it be «a fact, or both the opinions and the fact, to the contrary notwithstanding, that the property was not worth. more than the claim in satisfaction of which it was transferred. There is nothing to indicate that any creditor was left unsatisfied at the time that the conveyances in question were made, and those conveyances certainly inflicted no injury on plaintiffs, whose debt had not then been contracted, and was not contracted until a year or more later. But, if the purpose had been to place the property of the husband, both in Indiana and Louisiana, beyond the reach of the husband’s future creditors, it is not apparent why the claim of the wife for the restitution of her personal funds, which claim, there were reason to believe might serve as a valid consideration for the conveyance to her of the Louisiana property, should have been' exhausted in Indiana, when, as we infer from the fact that plaintiffs appear to have made no attack on
Passing to some other questions: There is no doubt that the Louisiana farm, having been acquired during the marriage, was community property, though Landers and his wife resided in Indiana. C. C. 2400. But that did not prevent its conveyance to the wife, provided there was a consideration, which, under the law of Louisiana, would be sufficient to support a sale, or dation en paiement, from husband to wife. The position taken in the answer to the intervention, that the intervenor, as part of the price, assumed the mortgage debts resting upon the property, and due by the husband, is not sustained by the fact. The intervenor did not assume the mortgage debts, but. took the property, subject to the mortgages, and only for its supposed value over and above the debts thus secured. So, also, with regard to the position that property worth $10,000 was conveyed to her in extinguishment of her claim to the extent of only $2000, and that the price was “ vile,” etc. Such was not the fact. The property was conveyed subject to mortgages amounting to $7500, exclusive of costs, interest, attorney’s fees, etc., for which it may be liable, and hence, the interest acquired by the intervenor seems to bear but a just proportion to the claim for which it is said to have been given in satisfaction.
Mrs. L. C. Colvin vs. D. A. Johnson, Sheriff, et als., 104 La. 655.
The question which remains is: Was there a consideration for the conveyance of the Louisiana property from husband to wife, such as can be recognized under Louisiana law? The conveyance purports to be a sale for $2000, and is invalid upon its face.
“A contract of sale between husband and wife can take place only in the three following cases:
“1. When one of the spous'es makes a transfer of property to the other, who is judicially separated from him or her, in payment of his or her rights.
“2. When the transfer made by the husband or his wife, even though not separated, has a legitimate cause, as the replacing of her dotal or other effects alienated.
“3. When the wife makes a transfer to the husband of property, in payment of a sum promised him as dowry. * * *” C. O. 2446.
The burden of proof is on the intervenor to show that the conveyance, which appears upon its face tO‘ be invalid, because the consideration expressed is not within1 the exceptions of the law, is based upon another and a different consideration, which is within those exceptions.
At common law, a married woman cannot possess personal property independently of her husband except where a trust is created for her separate benefit; and the promise of the husband to repay money received from the wife during coverture, would be without consideration. 15 Am. & Eng. Ency. of Law (2nd Ed.), 820; Henderson vs. Trousdale, 10 Ann. 548; McCall vs. White, Ib. 577; Eager vs. Brown, 14 Ann. 594; Quigley vs. Muse, 15 Ann. 197. There is no evidence in the record that this rule has been modified by statute in Indiana, and, hence, we have no basis upon which to hold that the receipt of money from his wife and its conversion by Landers imposed any obligation upon him the discharge of which could serve as the consideration for the conveyance to her of property in this state. Even if it had been shown that by reason of statutory modification in Indiana of the common law otherwise prevailing there, Landers became the debtor of his wife with respect to her personal funds received and converted by him, and that he also owed interest thereon, under an agreement to that effect, such obligation would not be held, in this state, to stand upon the same footing as the debt of a citizen of Louisiana to his resident wife for paraphernal or dotal funds received by him. Nor, would a conveyance of property, made in this state, in satisfaction of the one debt, be here given the effect which, under our law, is accorded to the dation en paiement in satisfaction of the other. Prats vs. Creditors, 2 R. 501; Stewart vs Creditors, 12 Ann. 89; Hyman, Lichtenstein & Co. vs. Schlenker '& Hirsch, 44 Ann. 118. ' The counsel for the iritervenor contends, however, that a creditor can proceed by the seizure of property, the title to which is in another person than his debtor, only
In the case last above cited, the syllabus reads, in part: “If the act of sale evidenced a real transaction, whatever its character, the administratrix could not ignore it, or attack it collaterally, but could only claim its judicial revocation by direct action.”
But, in the case at bar, the putative sale, from husband to wife, purporting to have been made for money in hand paid, is not valid upon its face — but is distinctly invalid, as being,'apparently, in violation of a prohibitory law. It cannot, therefore, be said to evidence a real transaction, but leaves the title to the property, apparently, in the vendor, and subject to seizure at the suit of his creditor.
Our learned brother of the District Court, after a conscientious and exhaustive review of the case, concludes his opinion as follows: “* * * it seems, so far as I am advised, that, under the law of Indiana, the husband and wife have almost unlimited power to contract with each other. Under our own law, restitution to the wife, by the husband, is looked upon with favor. * * * The sale in controversy in this case was an accomplished fact long before the plaintiffs ever became creditors of the defendant, Landers, and the intervenor, by virtue of that sale, had accepted that property and gone into actual possession of the same. For the foregoing reasons, and after a prolonged and thorough study of the question, and all the law and facts bearing upon it, I am forced to conclude that the transaction, or transfer, in controversy, vested title to the property in the intervenor, and she is accordingly declared to be the true and lawful owner,” etc.
We infer from this that something may have been conceded, in the argument in the district court, as to the statutory modifications of the common law, in Indiana, in so far as that law bears upon the relation
Since the submission of the case, the death of Franklin Landers has been suggested, and his legal representatives have been made parties hereto.
It is therefore ordered, adjudged, and decreed that the judgment appealed from be annulled, avoided, and reversed, and that there now be judgment in favor of the plaintiffs, Fred. P. Rush and Morris M. Townley, administrator of George E. Townley, deceased, and against the intervenor, Mrs. Martha E. Landers, dismissing the intervention of said Mrs. Landers as in ease of non-suit and at her cost in both courts.
Rehearing refused.