3 Mart. (N.S.) 382 | La. | 1825
delivered the opinion of the court. The petitioner states that he was a creditor of Joseph Fletcher, deceased, in a large sum of money, that since his death he has obtained judgment for it, but has been unable to have this judgment satisfied, in consequence of the succession being insolvent. That the said Joseph Fletcher, during his life, made a donation inter vivos to one Elizabeth Fletcher, then living in open concubinage with him. That this donation is void for this and other reasons; he therefore prays that the property so conveyed may be declared part of the succession of his debtor, and that he may have such other relief as his case requires.
To these allegations the defendant answers: That she is the true and lawful proprietor of the property mentioned in the petition, and has been in possession of the same for the space of two years. That the estate of Fletcher is solvent, and that there is certain property in the hands of the executors and heirs, which the plaintiff is bound to discuss. That all the other allegations are false and untrue; and
The judge of the court below decided in favor of the defendant, and the plaintiff appealed.
The appellant has made in this court the following points:
1. That the testimony of Flecker & McRae ought not to have been admitted.
2. That the donation inter vivos being made when the donor was in extremis, has no greater effect than a donation mortis causa, and must be postponed to debts.
3. That as a donation inter vivos, it is void for want of transcription according to law.
4. That the donee being a married woman, the donation is void, for want of husband's authorization to accept.
5. That the donor and donee being in adulterous concubinage, he could not donate, or she receive.
6. That the donation is void, as against prior creditors, the estate of donee being insolvent.
7. That the donation is void, being made with a view to defraud creditors.
Nor do we think that the right of the defendant to contradict his own act is in the least
The donation therefore stands before us, as one made without any other consideration than that of beneficence, and the right of the parties must be examined in relation to it as such.
The first, second, third, fourth and fifth objections to its validity, are, that it is void by being made in extremis, for want of transcription, from defect of legal acceptance, and from the parties being at the time of the grant in adulterous concubinage. Several of these questions are of considerable importance to the community; and there are more than one of them so doubtful, that it is no doubt, desirable they should be settled as soon as possible, by judicial interpretation. But they are not necessary to the decision of this case, and we therefore forbear to touch upon them. The plaintiff, who attacks this conveyance,does not present himself before this court in such a manner as authorises him to raise these questions. Creditors have no right to intermeddle with
Parol testimony is not the legal mode of
The incapacity of the estate left by Fletcher to satisfy his creditors, should have been shewn by a settlement before the only tribunal in which it could have been settled, in the court of probates; and that not having been done here,
We think, however, that instead of the judgment being final, one of nonsuit should be rendered.
It is therefore ordered, adjudged and decreed, that the judgment of the district court be annulled, avoided and reversed—and it is further ordered, adjudged and decreed, that there be judgment against the plaintiff, as in case of nonsuit, with costs in the court of the first instance—the appellee paying those of appeal.