Burns v. Rivero

• Decision Date: 01 May 1939
• Docket Number: 35169.
• Citation: 189 So. 129,192 La. 767
• Court: Louisiana Supreme Court
• Parties: BURNS v. RIVERO.

189 So. 129

192 La. 767

BURNS v. RIVERO.

No. 35169.

Supreme Court of Louisiana.

May 1, 1939

Appeal from Civil District Court, Parish of Orleans; Wm. H. Byrnes Judge.

Suit by Mrs. Hazel Burns, divorced wife of George Sidney Graham against Mrs. Dolores Marie Rivero, widow of Theodule Fossier to set aside a sale of realty by defendant to plaintiff and recover the amount of the purchase price and the amount spent for improvements by plaintiff. From a judgment for defendant rejecting plaintiff's demands and dismissing the suit, plaintiff appeals.

Affirmed.

John E. Fleury, of Gretna, for appellant.

Cyril F. Dumaine, of New Orleans, for appellee.

ODOM Justice.

By notarial act dated August 9, 1934, Mrs. Hazel Burns, divorced wife of George Sidney Graham, purchased from Mrs. Dolores Marie Rivero, widow of Theodule Fossier, certain real estate consisting of a lot of ground and the improvements thereon. The consideration was $7500, $4000 of which was paid in cash and the balance in the assumption of certain mortgages resting on the property.

Mrs. Burns, the purchaser, brought the present suit against Mrs. Fossier, her vendor, to set the sale aside on the alleged ground that, whereas she intended to purchase the entire interest in the property, she learned after the purchase that Mrs. Fossier owned only an undivided one-half interest therein, and that therefore she acquired only an undivided one-half interest. She alleged further that, since she acquired the property, she had spent something over $1200 on improvements. She prayed that the sale be set aside, and for judgment against Mrs. Fossier for the amount of the purchase price, plus the amount she had spent for improvements.

In answer Mrs. Fossier admitted plaintiff's allegation relating to the act of sale, but averred that she had transferred to plaintiff perfect title to the entire interest in the property, and prayed for judgment rejecting plaintiff's demands at her costs.

There was judgment for defendant, rejecting plaintiff's demands and dismissing her suit. Plaintiff appealed.

The facts disclosed by the documents filed in evidence are that the defendant purchased the property involved from her son, Emile J. Fossier, by notarial act dated January 15, 1930, for $10,000 cash. The deed recited that the purchaser, Mrs. Fossier, then the wife of Theodule Fossier, purchased the property ‘ with her separate and paraphernal funds, under her separate administration and control and for her own use and benefit.’

A short time after she purchased the property, her husband, Theodule Fossier, died, leaving as his sole heirs three children, issue of their marriage. His succession was never opened because he left no property.

Plaintiff's contention that she acquired only an undivided one-half interest in the property is grounded upon the theory that the property when purchased by Mrs. Fossier fell into the community which existed between Mrs. Fossier, plaintiff's vendor, and Mrs. Fossier's husband, and that at his death his community interest therein was inherited by his three children, who did not join in the sale to plaintiff.

Mr. and Mrs. Fossier were living together as husband and wife at the time Mrs. Fossier bought the property from her son in 1930.

In January, 1934, which was some time after the death of her husband, Mrs. Fossier borrowed the sum of $3500 from Edward Lund and to secure the loan offered to mortgage the property. It seems that some question as to the validity of her title, especially with reference to a one-half interest therein, was raised at that time. To clear up the title and to make it certain that the heirs of Mrs. Fossier's deceased husband made no claim to any right or title to the property, they executed, signed, and recorded an instrument in which they declared that, whereas their mother did acquire by purchase the said property on January 15, 1930, by notarial act which recited that ‘ she was purchasing said property with her separate and paraphernal funds under her separate administration and control and for her own use and benefit’, and that, whereas, at the time of her acquisition of the property, ‘ Mrs. Fossier's husband was alive and living with her, but since that date has departed this life’, and that,

‘ Whereas, a question has arisen as to the status of the property of Mrs. Fossier, acquired as aforesaid;

‘ Now, Therefore, we, Emile Joseph Fossier, Theodule Paul Fossier and Mrs. Dolores Marie Fossier, wife of Francis Raymond Pfister, do hereby declare that our father, Theodule Fossier, was married but once and then to our mother named hereinabove; that we are the sole and only surviving issue of the marriage between our said father and mother and our said father never adopted any person; that at our father's death, he left no debts and all of the expenses of his last illness were duly paid; that our father had retired some ten years before his death and our mother engaged in business on her own account; that the funds with which our mother purchased the property herein-above described were acquired by her from the operation of her business and amounts contributed to her by us at various times and our father in no wise contributed to said funds;

‘ We recognize the above described property to be the separate and paraphernal property of our mother, the said Mrs. Dolores Marie Rivero, widow of Theodule Fossier, and hereby disclaim any interest whatsoever in and to the same.’

The instrument was signed by each of the three heirs in the presence of witnesses. They then appeared before a notary and made oath that they were of...