Cahn v. Cahn
| Decision Date | 14 May 1985 |
| Docket Number | No. 84-C-2115,84-C-2115 |
| Citation | 468 So.2d 1176 |
| Parties | Robert CAHN v. Dorothea Schlesinger CAHN and Marjorie Cahn Friedman. |
| Court | Louisiana Supreme Court |
William Rosen, Levy, Marx, Lucas & Rosen, New Orleans, for defendant-applicant.
Max Nathan, Jr., Isaac Gregorie, Jr., Sessions, Fishman, Rosenson, Boisfontaine & Nathan, New Orleans, for plaintiff-respondent.
Plaintiff, Robert Cahn, instituted this action to partition immovable property by licitation. Robert Cahn has the perfect ownership of an undivided one-fourth interest in immovable property, and he is the naked owner of an additional one-fourth interest. Defendant, Dorothea Schlesinger Cahn, the beneficiary of a usufruct which exists over one-half of the property, filed an exception of no cause of action. The trial court sustained the exception, finding that partition by licitation was barred by C.C. 543. The court of appeal reversed, overruling the exception. Cahn v. Cahn, 459 So.2d 731 (La.App.1984). We now reverse the court of appeal judgment and reinstate the judgment of the trial court.
The property at issue in this case consists of a house situated on the two lots described below 1 located at 40 Versailles Boulevard in New Orleans.
The house was acquired during the community of Moise Cahn and his first wife, Gladys Cahn. Two children were born of that marriage, Robert Cahn and Marjorie Cahn Friedman. Gladys Cahn died and Moise Cahn became the usufructuary of Gladys' one-half interest in 40 Versailles Boulevard by virtue of a testamentary usufruct. Robert Cahn and Marjorie Cahn Friedman became the naked owners of their mother's one-half interest in the property.
Moise Cahn subsequently married Dorothea Schlesinger Cahn. No children were born of that marriage. In 1978, after thirteen years of marriage, Moise Cahn died, leaving a testamentary usufruct to Dorothea Schlesinger Cahn. It was Moise Cahn's clear intention to leave Dorothea a usufruct over the home at Versailles Boulevard; however, Moise only owned one-half of the property. His usufruct over the other one-half interest terminated upon his death. Upon Moise Cahn's death, his children, Robert Cahn and Marjorie Cahn Friedman, became owners of the one-half interest originally owned by their mother, Gladys Cahn, and acquired the naked ownership of the one-half interest left by Moise Cahn.
Dorothea Cahn, now seventy-nine years of age, has occupied the premises at 40 Versailles Boulevard since Moise Cahn's death. She has been solely responsible for maintaining the premises since that time. She has paid all taxes levied on the premises and she has also paid for numerous repairs and improvements.
On July 26, 1982 Robert Cahn filed suit to obtain a partition by licitation of the property. As defendants, he named his stepmother, Dorothea Cahn and his sister, Marjorie Cahn Friedman. In his original and supplemental petitions Robert Cahn alleged that as the perfect owner of an undivided share of the property, he was entitled to obtain a partition by licitation. All parties agree that a partition in kind is not possible.
Dorothea Cahn filed an exception of no cause of action, contending that C.C. 543 prohibits partition by licitation where a usufruct exists over any part of the property. The exception was based on our interpretation of C.C. 543 in Pasternack v. Samuels, 415 So.2d 211 (La.1982).
In response to the exception, Robert Cahn amended his petition to allege that the 1983 amendment of C.C. 543 overruled Pasternack. In the alternative he prayed for rent, possession or a declaration of his rights.
On October 21, 1983 a hearing on the exception was held before the district court. On February 2, 1984 judgment was rendered sustaining the exception of no cause of action. In its reasons for judgment the court concluded that the 1983 amendment of C.C. 543 could not be applied retrospectively and therefore partition by licitation was prohibited by the original version of 543 as interpreted in Pasternack. The court also declined to render a declaratory judgment, finding that plaintiff prayed for declaratory relief solely for the purpose of circumventing C.C. 543.
Plaintiff appealed and the court of appeal reversed, overruling defendant's exception. The court applied the original version of C.C. 543, but nevertheless found that partition by licitation was not prohibited since Pasternack was factually distinguishable.
Defendant, Dorothea Schlesinger Cahn, now seeks reinstatement of the trial court judgment sustaining the exception of no cause of action. Plaintiff, Robert Cahn, prays for affirmance of the court of appeal judgment. In the alternative, he seeks rent, possession of the premises or a declaration of rights. Robert's sister, Marjorie Cahn Friedman, though a nominal defendant, has not taken part in these proceedings.
I. Whether the 1983 revision of C.C. 543 was curative, remedial, or procedural in nature, such as to render it applicable to cases arising before the effective date of the revision?
II. Whether C.C. 543 prohibits the owner of an undivided one-quarter ownership interest from obtaining a partition by licitation where a testamentary usufruct exists over an undivided one-half interest in the property?
III. Whether the owner of an undivided one-quarter ownership interest is entitled to possession of the premises or rent from the usufructuary for her use of his undivided share of the premises?
The basic right of co-owners to demand partition is firmly established in the civil law of this state. Civil Code article 1289 lays down the general rule:
"No one can be compelled to hold property with another, unless the contrary has been agreed upon; any one has a right to demand the division of a thing held in common, by the action of partition."
This basic right is reiterated in other articles of the code. Cf. 1307, 1308, 1309, 1312, 1313, 1315, 1320, 1321.
Although the right of partition is broad, it is not without limitation. See for example C.C. 1303 and 2336. Article 543 is one such limitation on the right to partition. The following version of 543 was enacted as part of the 1976 revision of the property articles in the Civil Code:
(Emphasis added).
The official reporter's comments to that provision indicate that the second sentence was intended to codify established jurisprudence. 2
We interpreted the prohibition established by C.C. 543 in Pasternack v. Samuels, supra. In that case, Pasternack sued for a partition by licitation against his sister, Betty Claire Pasternack Samuels, individually and as co-administrator of their mother's estate. The property consisted of seventy parcels of land. With the exception of two of the parcels, the property was owned in undivided shares by Pasternack, a trust for his son, Mrs. Samuels and a trust for her children. The interest held in trust for the Samuels children was subject to a usufruct in favor of Mrs. Samuels. She opposed the partition, claiming that C.C. 543 prohibited a partition by licitation where a usufruct existed over any part of the property.
In affirming the court of appeal judgment in Mrs. Samuels' favor, we held:
Pasternack v. Samuels, supra at 213-14.
The present suit was instituted shortly after our decision in Pasternack v. Samuels, supra. During the pendency of this action, C.C. 543 was amended in an attempt to legislatively overrule Pasternack. 3 The present version of C.C. 543, which was passed during the 1983 session of the legislature, provides:
The official comments which accompanied the new version of C.C. 543 indicate that the purpose of the amendment was:
"... to change the law governing partition of property held in indivision, in full ownership, in usufruct, and in naked ownership, ..." 4
RETROACTIVITY OF 1983 AMENDMENT TO CIVIL CODE ARTICLE 543
Defendant acquired her rights in 40 Versailles Boulevard at the moment of Moise Cahn's death in 1978. Civil Code articles 870, 871, 940, 941, 942, 1626, Baten v. Taylor, 386 So.2d 333, 340 (La.1979). The law in effect on that date, the earlier version of C.C. 543, controls this case absent some exception to the general rule prohibiting retrospective application of laws.
Civil Code article 8 states the general rule:
"A law can prescribe only for the future; it can have no retrospective operation, nor can it impair the obligation of contracts."
This principle has constitutional implications.
Article 1, Sec. 23 of the Louisiana Constitution provides:
"No bill of attainder, ex post facto law, or law impairing the obligation of contracts...
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