Castleman v. Smith

• Decision Date: 07 January 1924
• Docket Number: 25856
• Citation: 99 So. 293,155 La. 367
• Court: Louisiana Supreme Court
• Parties: CASTLEMAN v. SMITH et al

99 So. 293

155 La. 367

CASTLEMAN v. SMITH et al

No. 25856

Supreme Court of Louisiana

January 7, 1924

Rehearing Denied by Division C February 25, 1924

Appeal from Seventh Judicial District Court, Parish of West Carroll John R. McIntosh, Judge.

Suit by Mrs. Mary H. Castleman against George A. Smith administrator, and others. Judgment for defendants, and plaintiff appeals.

Affirmed.

T. H. McGregor, of Shreveport, for appellant.

M. H. O'Connell, of Oak Grove, for appellees.

BRUNOT, J. OVERTON, ST. PAUL, and THOMPSON, Justices.

OPINION

BRUNOT, J.

Plaintiff sues to set aside an act of donation inter vivos of real and personal property; to be decreed the owner of an undivided interest in the property conveyed by the donation; for a portion of the proceeds of the sale of a part of the property made by the donee; and for a proportionate share of the rental value of the real estate retained by her.

The attack is based upon three grounds, viz.: That the donor dispossessed himself of all his property; that the act of donation was not in notarial form; and that the donee failed to perform the conditions of the donation.

There is a multiplicity of pleadings and every phase of the case has been contested. The case was before this court in 1920 on an appeal from a judgment sustaining pleas of estoppel. The judgment of the lower court was reversed and the case remanded. In the opinion of this court reported in 148 La. 233, 234, 86 So. 778, Mr. Justice Dawkins, the organ of the court, has fully and accurately stated the case and it is not necessary to restate it here. Following the remand of the case, additional pleadings were filed. Defendants pleaded the prescription of 5 and 10 years against the second ground of attack. This plea was overruled. They thereupon filed an exception of no cause of action as plaintiff was suing as an ordinary heir to set aside a donation as being one omnium bonorum, and a similar exception because if suing as a forced heir plaintiff could not demand more than the reduction of the donation to the legitime. Defendants also filed three additional pleas of prescription, viz.: The prescription of 5 and 10 years to the attack upon the donation for the alleged failure of the donee to perform its conditions; the prescription of 5 years to the attempt of plaintiff to reduce the donation to the legitime; and the prescription of 3 and 10 years to plaintiff's demand for a portion of the proceeds of the property sold and for a portion of the rental value of the real property retained. None of these pleas appear to have been directly passed upon by the lower court, and, as there were no docket entries made after the case was remanded, we assume that they were referred to and considered with the merits.

The trial on the merits resulted in a judgment dismissing plaintiff's suit and decreeing that the property involved in the litigation belonged to the succession of Bythallow Haynes, deceased. From this judgment plaintiff has appealed.

The lower court found that plaintiff's suit was really an action to reduce an excessive donation. In his written reasons for judgment the district judge seems to have sustained two of the pleas of prescription, but he omitted mention of them in his decree. In the reasons referred to the judge says:

"If the said donation is an agreement then it seems as if article 2221, C. C., would govern and the plea be sustained.

"Under heading Prescription of Five Years, article 3542, rescission of contracts, testaments or other acts for nullity and for the reduction of excessive donations are cited, as coming thereunder. This is an action for reduction of excessive donation, and it seems that it should be governed by this plea of prescription.

"In actions of this character the complainant is required to make out her case. In this instance it must be admitted that the act complained of is an onerous donation and unless complainant establishes to the satisfaction of the court that services rendered to the donor by the donee were less than one-half the value of the property then the action must fall."

Having reached the conclusion that the donation was not a gratuitous but an onerous one, and that the suit was for a reduction of an excessive donation, the trial judge, without further comment upon the pleas of prescription, reviewed the testimony, and finding, as a fact, that the donor did not dispossess himself of all of his property, but retained sufficient for his meager wants, and that the donee complied with the conditions of the donation and rendered services of a value equal to one-half of the value of the property donated, he applied the rule that the burden is upon the plaintiff to sustain her allegations by a preponderance of the proof, and rendered his judgment accordingly. We have read the record, and we concur in the lower court's finding of fact. We are therefore of the opinion that the donation was not one omnium bonorum, and for this reason it is unnecessary to consider whether or not plaintiff's right to attack it on that ground is barred by prescription. We are also of the opinion that it is not necessary to consider whether the right to attack the donation, upon the ground of alleged nonfulfillment of the conditions imposed upon the donee, is prescribed, because the facts show that the donee is not chargeable with any laches or omission of duty. We are also of the opinion that the donation attacked is an onerous donation. Landry v. Landry, 40 La.Ann. 229, 3 So. 728.

All of the questions presented are therefore disposed of adversely to plaintiff's contention, except the attack upon the donation as not being in notarial form. Is it sacramental that an onerous donation inter. vivos be made in notarial form? Is such a donation made otherwise than...