Barre v. Hunter

• Decision Date: 30 May 1938
• Docket Number: 16730
• Citation: 181 So. 674
• Court: Court of Appeal of Louisiana — District of US
• Parties: BARRE v. HUNTER

181 So. 674

BARRE v. HUNTER

No. 16730

Court of Appeal of Louisiana, Orleans.

May 30, 1938

Rehearing denied June 13, 1938.

Puneky & Barrios and James J. Landry, all of New Orleans, for appellant.

Gilbert Bernstein, of New Orleans, for appellee.

OPINION

McCALEB Judge.

On November 26, 1935, the plaintiff, Alice Barre, widow of Joseph Martin (a colored woman, 86 years of age), sold to her niece, Charlotte Hunter, wife of Ulysses Chaligny, the defendant, by authentic act passed before F. C. Querens notary public, a small piece of real estate situated in St James Parish for a stated consideration of $ 90.00 cash. Simultaneously with the execution of this act of sale, the defendant agreed, by act under private signature, that, as an additional consideration for the transfer, she would permit the plaintiff to have the possession, use and enjoyment of the premises for the balance of her natural life without cost.

On October 13, 1936, plaintiff filed this suit in which she seeks to have the act of sale annulled and set aside on numerous grounds. She alleges (1) that, while said act purports to recite a consideration of $ 90.00 received by her in cash, in truth and in fact, she has not received any sum whatsoever for the transfer; (2) that the act is in reality a donation whereby she divested herself of all of her property in violation of law; (3) that the transfer was obtained upon the defendant's verbal offer and promise to support and maintain her during her life, which the defendant has failed to do; and (4) that the sale is null because of lesion beyond moiety inasmuch as the consideration is only $ 90.00 whereas the property is valued at more than $ 500.00.

To this petition, the defendant appeared and, alleging that the causes, on which plaintiff based her demand for rescission of the sale, were inconsistent, moved that she be required to elect and declare upon what particular averments she intended to predicate the suit. She also filed an exception of no right or cause of action.

After a trial on these pleas, the District Court overruled the exception of no right or cause of action but sustained the motion and required the plaintiff to elect as to which allegations she would stand on. Plaintiff, in accordance with the order of the judge and with full reservation of her rights, elected to proceed on the ground (1) that the sale was null and void because the conveyance had been obtained upon the defendant's verbal promise that she would support and maintain her without cost during her lifetime, and (2) that the contract should be set aside because of lesion beyond moiety.

In due course, the defendant answered. She denied that she had ever promised to maintain and support the plaintiff during her lifetime and further disclaimed that the consideration paid by her was less than one half of the value of the property.

On these issues, the matter proceeded to trial and resulted in a judgment in favor of the defendant. Plaintiff has appealed.

The first complaint is that our brother below was in error in requiring plaintiff to elect. She says that, even though the facts alleged in the petition are repugnant, she should not have been compelled to elect because the averments are pleaded in the alternative. In support of this argument, the cases of Smith v. Donnelly, 27 La.Ann. 98, and Nicol v. Jacoby, 157 La. 757, 103 So. 33, are cited.

It is well recognized that a suitor may plead in the alternative for several different types of relief even though they be inconsistent. That rule, however, is without application in the instant case. The allegations, upon which plaintiff bases her asserted cause of action, are utterly opposed to each other. Her primary ground for the annulment of the sale is that she received no consideration and that the transfer was in reality a donation. Her alternative grounds are that, if the court should hold that ...