84 So. 2d 613 | La. | 1955
Mrs. Alma Ruth Bishop Farmer, individually and as administratrix of the succession of her late father, David D. Bishop, joined by her mother and brother, instituted this, suit against Mrs. Billie Hall Bonansinga and Mrs. Esther Davis Hall Bishop, to have (1) set' aside as a simulation a sale of property made by Bishop and Mrs. Esther Bishop on November 14, 1949, to Mrs. Bonansinga, or, in the alternative, revoked as a fraudulent transfer; (2) cancelled and erased from the public records the sale and resale of this property by Mrs. Bonansinga to the Home Building and Loan Association in December of 1950;
The property in question, which is located at 1533 Erato Street in New Orleans, Louisiana, was acquired jointly by David D. Bishop and Esther Davis Bishop
The record reflects that Bishop and Mrs. Esther Davis Bishop moved to New Orleans in 1922 and continued to live here until his death in 1952. Up until 1934, when she and the first husband whom she had married in 1932 moved away from the home, Mrs. Bonansinga (who was born in 1909 and was then approximately 25 years of age) lived with her mother and stepfather. She returned to live with them upon her separation from her husband in 1937 and remained there until her second marriage in 1947. Bishop, who was a heavy drinker, was, during this time, rarely employed. It was only in May of 1950 that he secured work in the record room of the Civil District Court for the Parish of Orleans. Mrs. Bishop had difficulty maintaining the family on her earnings as a waitress and some time operator with a friend of a small restaurant. For this reason it became necessary for Mrs. Bonansinga, even during high school days, to work on Saturdays and during the summer months to help out in implementing the family income. From the time of her graduation from high school in 1926, she advanced to her mother and stepfather a good part of the money she earned. At the time of the trial she was still employed by the firm she went to work for in June of 1929, and, during this entire time had, in addition to turning over to the Bishops regular amounts from her earnings, advanced to them additional large sums, including (1) $300 in 1932 to help Bishop and his daughter, the plaintiff Mrs. Alma Ruth Bishop Farmer, open a restaurant so that Bishop might have some employment, a venture that failed within a few months; (2) the $200 down payment made at the time the house on Erato street was purchased in 1936; (3) $500 for the construction of an additional bathroom in 1940-1941; (4) '$700 for repairs to the house in 1947; (5) $600 on one occasion and $360 on another to help them pay the mortgage assumed on the property at the time of its purchase; and (6) $400 for medical expenses during a three year period when her mother was ill.
There is no testimony in the record with respect to the transaction of November 14, 1949, other than that of Mrs. Bonansinga, who was called by the plaintiffs under the
This testimony of Mrs. Bonansinga. is not only uncontradicted,
In brief here counsel for appellants concede the sale may not be avoided as a simulation. They argue, nevertheless, that inasmuch as Mrs. Farmer and her brother arc forced heirs of their father, the sale was in fraud of their rights as “creditors” of his . estate and the sale is, therefore, vulnerable to attack under Article 1978 et seq. of the LSA-Civil Code of 1870. They, cite in reli- ,
Whatever consolation appellants may derive from isolated passages quoted from these decisions, an analysis discloses they .are not authority for their contention. The Maples, Perrault, and Jones cases were •suits by forced heirs under Articles 1502-1518 of the code to have allegedly excessive donations made by their ancestors reduced in so far as they infringed on their legitime. Article 1504 .in this group specifically provides that such donations may be reduced in court action by forced heirs, or by their heirs or assigns only, and that “neither the donees, legatees, nor creditors of the deceased can require that reduction nor avail themselves of it.” (Emphasis supplied.)
The Sullice case was not instituted by foixed heirs as “creditors” to have revoked a conveyance allegedly executed in fraud of their rights as such. On the contrary, it' was a contest between a curator representing bona- fide creditors of a decedent to have avoided as a simulation a sale purportedly executed in plaintiffs favor in fraud of their rights as creditors. When the transferee urged that these creditors were without right to question the sale inasmuch as the contract had been made prior to the accrual of their debts, Article 1993, the ■ court held such a rule inapplicable in the case of a simulated sale pure and simple,since such a sale, if simulated under the proof, was considered as never having been • made and the property, therefore, to be' that of the debtor; consequently, that the' revocatory action could be instituted to' avoid simulated sales without regard to tha date or origin of the claims of the creditors.
Articles 1968-1994 of the code, to be found in the section dealing with the ef-; feet of obligations and the manner in which they may be avoided by creditors not par- • ties to them, has no reference to forced heirs as “creditors” of successions as con-; templated in the jurisprudence,
For the reasons assigned the judgment appealed from is affirmed at the cost of the appellants.
. This association was joined as a party defendant but made no appearance.
. Appellants have sought throughout to establish, largely by innuendo, that Bishop never divorced bis first wife, and, consequently, was not married to Mrs. Esther Davis Bishop, who asserts such a marriage ceremony took place in Vicks
. Article 1900 of the LSA-Civil Code of 1870; Citizens Bank & Trust Co. v. Willis, 183 La. 127, 162 So. 822.
. Two co-employees of Bishop testified they had paid for him, out of money he; gave them (on one occasion out .of money derived' from his pay check that had ' been cashed) mortgage payments made subsequent to the time of the sale, but in view of the understanding Mrs. Bonansinga had with her mother and stepfather about these payments being made out of the rents collected, this testimony does not serve to prove the contentions of appellants.
. The statement in Maples v. Mitty, 12 La.Ann. 759, to the effect that iñ so far ‘ as their legitime is concerned, children are creditors and not heirs of their father’s succession, is traceable to Rachal v. Rachal, 4 La.Ann. 500. In the Rachal case forced heirs attacked a' sale as a' disguised donation and under a peremptory exception witnesses testified they believed the vendor’s object in selling the property was to put it beyond the'reach of a pending suit, which was contrary to public policy. It was urged in defense that since the contract had for its object a fraudulent purpose the heirs could no more recover under it than could their father. The court, holding the proof warranted the conclusion the sale was avoidable as simulated, stated the alleged object -of the vendor in making the sale could not affect the rights of his forced-heirs since their rights as such were not • derivéd from him but from the law and,' so far as their legitime “is concerned,1 they are not heirs;-' they- are- creditors.”"'5
. It is argued that there are in the record facts that are usually regarded as presumptive evidence of fraud, i. e., (1) the sale was ominium bonorum; (2) the closeness of the family relationship; (3) retention and continued occupancy of the property by the vendors; (4) monthly payments on the mortgage by the vendors after the sale; (5) a vile price; and (6) the listing of the property as their own by the vendors after the sale.