Angichiodo v. Cerami

• Decision Date: 21 October 1940
• Docket Number: No. 107.,107.
• Parties: ANGICHIODO v. CERAMI et al.
• Court: U.S. District Court — Western District of Louisiana

35 F. Supp. 359

ANGICHIODO v. CERAMI et al.

No. 107.

District Court, W. D. Louisiana, Alexandria Division.

October 21, 1940.

COPYRIGHT MATERIAL OMITTED

Philo Coco, of Marksville, La., for plaintiff.

Couvillon & Couvillon, of Marksville, La., for defendant Sam Cerami.

McCoy & King, of Lake Charles, La., for defendant Amerada Petroleum Corporation.

PORTERIE, District Judge.

This is a suit by Guisseppe (Joe) Angichiodo of California against Sam Cerami of Avoyelles parish, Louisiana, to be decreed title owner in fee of eighty acres of land situated near the town of Bunkie in Avoyelles parish, and to have canceled from the records of Avoyelles parish certain acts purporting to affect his title to the eighty acres.

Plaintiff also makes Amerada Petroleum Corporation, a holder of mineral rights in said property, a defendant, alleging that it is holding its mineral rights under a void title.

Plaintiff acquired this property from Thad Moore and others on December 11, 1918, by vendor's lien deed; Mrs. Angelo Oddo, mother of defendant Sam Cerami and mother-in-law of plaintiff, acquired the vendor's lien, foreclosed, and purchased the property at sheriff's sale on March 30, 1926 (it is admitted by plaintiff that this was a valid acquisition.)

Plaintiff claims title to the property by virtue of an act of sale from Mrs. Oddo to his wife, Rosaria Cerami Angichiodo, dated October 28, 1927, made during the existence of the community, and allegedly paid for with community funds. It is alleged that his wife, seven years later, on October 18, 1934, without his knowledge, consent or authorization, executed a purported reconveyance of said property to Mrs. Oddo for an alleged consideration of $500 cash, which was never paid. He claims that as head and master of the community, he alone could legally sell or convey said property, and for that reason the sale was null and void and effected no divestiture of title in the community.

On June 30, 1935, Mrs. Oddo died in the town of Cheneyville, Rapides parish, leaving plaintiff's wife, Rosaria, and the defendant, Sam Cerami, as her sole heirs.

Plaintiff alleges further that Sam Cerami, with intent to deprive plaintiff of his property, by the use of false and fraudulent representations, induced him to sign an act of partition, on July 1, 1935, wherein the eighty-acre tract in question was allotted to defendant; that following the signing of this act, defendant again, by the use of false and fraudulent representations made to plaintiff, induced him to sign a second act of partition on August 21, 1935, wherein said property was mentioned as belonging to the succession of Mrs. Oddo and in which defendant was again allotted the property.

The so-called act of partition of July 1, 1935, two days after Mrs. Oddo's death, was in reality two acts of sale between the brother and sister, one by Sam to Rosaria, the other by Rosaria to Sam. Each sold to the other his or her undivided one-half of the succession of the mother. In each of the two sales Rosaria was joined by her husband, who signed, and the following extract was a part of each sale: "* * * this being land owned by Angelo Oddo, of Cheneyville, La., who is now deceased, and these two parties vendor and vendee being her only heirs, this deed is made for the purpose of dividing property." The instruments are signed by "Jos. Angichiodo, his mark," underneath the statement "I authorize my wife to sign."

Some time thereafter, Sam, upon going to his bank to make a loan and offering as security a mortgage on the tract of land allocated to him by the two sales above, was told that the succession of the mother should be opened, the two heirs placed in possession, to be followed by an act of partition. Upon the joint petition of Rosaria and Sam, this was done and at this second partition, by more formal procedure, the husband of Rosaria, the plaintiff in this suit, again appeared and joined his wife by signing and, this time, the following paragraph forms a part of the authentic act: "And to these presents also came and appeared Joseph Angichiodo, husband of Mrs. Rosaria Cerami, one of the appearers hereto, appearing herein for the purpose of aiding and assisting his said wife in said partition, and for the purpose of assenting to said partition and division in all of its parts, particulars, conditions, without any reservation, interest or claim on his part." (Italics supplied.)

Plaintiff prays that the act of sale from Rosaria to Mrs. Oddo and the two acts of partition be declared null and void and of no effect.

Plaintiff makes the Amerada Petroleum Corporation, holder of a mineral oil and gas lease on said property, a defendant, on the ground that Amerada Petroleum Corporation secured its lease by assignment, through its agent, P. N. Wiggins, from William Helis, on November 30, 1935. Plaintiff alleges that Helis, original lessee, obtained his lease on December 31, 1934, from Mrs. Oddo, who had no title to said property on the date lease was made.

Defendants, Sam Cerami and Amerada Petroleum Corporation, deny the allegations of plaintiff's petition, claiming there was no fraud or misrepresentation inducing plaintiff to act in error of his rights. The two defendants rely on the good faith and the solemn legality of the acts attacked by plaintiff. Alternative relief is sought by alleging that the sale from Rosaria to Mrs. Oddo was in fact a valid reconveyance, confirmed by various acts and deeds of plaintiff.

Amerada Petroleum Corporation further defends on the ground that it is an innocent third party as purchaser of said lease, having relied on the records of Avoyelles parish for its title, and without knowledge of any equities between plaintiff and defendant Cerami. The corporation defends itself, moreover, on the ground that the rights of plaintiff, if any he ever had, were waived, set aside, or conveyed, by his appearances in the two acts of partition.

Plaintiff has pivoted his case on two main points, to-wit:

(a) Was sale from Mrs. Oddo to Rosaria, her daughter, a conveyance of property which inured to the community of acquêts and gains existing between the plaintiff and his wife, Rosaria Cerami Angichiodo?"

(b) "Was sale which followed then from the daughter back to her mother a valid conveyance of title without plaintiff, as husband of vendor, joining in and signing the sale?"

There are additional points made by the plaintiff to follow the above two main pivotal questions, but dependent in their application and legal significance upon the answer given to the above two questions. These will be considered later in the opinion, after the first two questions are decided.

We answer question (a) in the affirmative; Articles 2334 and 2402, Civil Code of Louisiana. Evidence was that the wife had no paraphernal funds, no separate earnings, and was not separated either in person or property from her husband.

We answer question (b) in the affirmative, because there was repeated ratification by plaintiff of the sale by his wife to her mother. The strength of this ratification, insofar as third parties acquiring after recordation of the ratification be concerned, is fully set out in the first consideration of this case, found in D.C., 28 F. Supp. 720.

The crux of this decision is to determine if this same ratification be effective as between the original parties; and if there are any equities between the parties; and, particularly, if there are any equities in favor of the plaintiff.

The court is fully convinced that the original cash payment of $1,000, moving from the plaintiff to Thad Moore in 1918 as part payment for this eighty-acre tract, when this tract gets into our case picture, was furnished by Mrs. Oddo. The truth is, she let Joe have, at least, $1,250—$1,000 of which moved from Joe to Moore.

That there may be no question on this point, we look to the record. Joe himself said he gave $1,000 cash and executed a note of $1,250 to Mr. Thad Moore for the balance of the purchase price; he denies, however, having received $1,500, or any part thereof, at the Citizen's Bank from his mother-in-law in the presence of Mr. Mathews, the president, and his brother-in-law, Sam. Again, referring to the $1,250 balance, upon being asked by his own lawyer: "Who took up that note?" he replied: "My mother-in-law. She say no use you pay eight per cent. to bank; I got money; you pay me four per cent. and I hold note." Sam stated categorically, giving place, time and witnesses, that Mrs. Oddo, the mother, let Joe have $1,500 to make the cash payment. Sam stated that twice, on direct and on cross-examination.

Joe, in his attempt to deny the receipt of the money in cash from his mother-in-law at the time of purchase from Thad Moore, in the opinion of the court, failed miserably.

The uncontroverted evidence is that Mrs. Oddo, the mother, paid all that was ever paid on the eighty-acre tract of land; she furnished to Joe the cash for the down payment; then, later, she bought the mortgage notes that had been issued for the credit part of the price.

In 1926 Mrs. Oddo foreclosed on the mortgage and purchased the property at sheriff's sale. In the same year Joe, having become involved financially, went into bankruptcy. In the following year, on October 28, 1927, Mrs. Oddo conveyed the eighty-acre tract to her daughter, Rosaria, for a recited consideration of $250 cash and deferred notes aggregating $937.86.

Plaintiff and defendant are agreed that the town lot in Cheneyville forming a part of the succession of Mrs. Oddo, which lot she had acquired on October 28, 1927, from Damiano Dino, meant a payment to her of $1,000 by Joe as of that date (the same date as sale of eighty-acre tract by Mrs. Oddo to Rosaria — thus denoting a general settlement among them of that date). The documentary record is that this lot, which subsequently became two lots when the paved highway was put through, was originally owned by Joe; that in the year 1923 he borrowed...