Ane v. Ane

• Decision Date: 26 April 1954
• Docket Number: No. 40996,40996
• Citation: 225 La. 222,72 So.2d 485
• Parties: ANE v. ANE.
• Court: Louisiana Supreme Court

Page 485

72 So.2d 485

225 La. 222

ANE v. ANE.

No. 40996.

Supreme Court of Louisiana.

April 26, 1954.

J. Charles Collins, Jr., Ralph D. Dwyer, Jr., Herbert J. O'Niell, New Orleans, for plaintiff-appellant.

Byrnes & Wallace, New Orleans, for defendant-appellee.

HAMITER, Justice.

On October 11, 1949 Dr. Joseph N. Ane obtained a judgment of divorce from Mrs. Louise Lambiotte Ane, the uncontested suit having been grounded on a continuous separation of two years. Slightly more than a month later (November 21, 1949), Mrs. Ane, while unrepresented by counsel, joined with Dr. Ane in the execution of a written stipulation or contract which purported to effect a settlement of the community of acquets and gains that had existed between them.

Thereafter, specifically on March 24, 1950, Dr. Ane obtained the issuance of a rule directed to Mrs. Ane under which he demanded the permanent care, custody and control of a minor child, Miriam Ane, born of their marriage. The custody demand was rejected ultimately. See 220 La. 345, 56 So.2d 570.

This suit was instituted by Mrs. Ane against her former husband on January 7, 1952. In it she seeks to set aside the community settlement contract of November 21, 1949, urging that she executed it through error and by reason of threats and fraud on the part of defendant, and that thereby her rights were substantially prejudiced, numerous items of property belonging to the community having been withheld from the settlement.

To the petition an exception of no right or cause of action (in reality an exception of no cause of action) was tendered. The district court, after a hearing, sustained the exception and dismissed the suit. Plaintiff is appealing.

It is elementary that for the purpose of determining the questions raised by an exception of no cause of action the well-pleaded allegations of fact contained in the petition must be accepted as true. The exception, as has been observed by this court, 'addresses itself to the sufficiency in law of the petition and is triable on the face of the papers.' Kennedy v. Perry Timber Co., 219 La. 264, 52 So.2d 847, 849. Applicable to this consideration also is another wellsettled principle in our jurisprudence that a petition stating a cause of action as to any ground for or portion of the demand will not be dismissed on an exception of no cause of action. Ingersoll Corporation v. Rogers, 217 La. 79, 46 So.2d 45 and cases therein cited.

By the allegations respecting threats and coercion, if not by those relating to the charged fraud, the petition of the instant suit, in our opinion, states a cause of action for the annulment of the settlement agreement.

As is said in LSA-Civil Code Article 1850, 'Consent to a contract is void, if it be produced by violence or threats, and the contract is invalid.' To be read in connection therewith, of course, are the further provisions contained in LSA-Civil Code Article 1851 that, 'It is not every degree of violence or every kind of threats that will invalidate a contract; they must be such as would naturally operate on a person of ordinary firmness, and inspire a just fear of great injury to person, reputation or fortune. The age, sex, state of health, temper and disposition [situation] of the party, and other circumstances calculated to give greater or less effect to the violence or threats, must be taken into consideration.' (Bracketed word suggested by editors of Louisiana Legal Archives as being correct translation.)

Here we find from the allegations that this plaintiff, defendant's former wife and a highly nervous person, executed a settlement stipulation or agreement which did not include many assets of the...