Collier v. Administrator, Succession of Blevins

• Decision Date: 02 January 1962
• Docket Number: No. 131,131
• Citation: Collier v. Administrator, Succession of Blevins, 136 So.2d 774 (La. App. 1962)
• Parties: Earl COLLIER v. ADMINISTRATOR, SUCCESSION OF Jacques E. BLEVINS et al.
• Court: Court of Appeal of Louisiana — District of US

Page 774

136 So.2d 774

Earl COLLIER v. ADMINISTRATOR, SUCCESSION OF Jacques E. BLEVINS et al.

No. 131.

Court of Appeal of Louisiana, Fourth Circuit.

Jan. 2, 1962.

Rehearing Denied Feb. 5, 1962.

Certiorari Denied March 28, 1962.

Roos & Roos, Sidney G. Roos, New Orleans, for plaintiff and appellant.

Henican, James & Cleveland, C. Ellis Henican, New Orleans, for defendants and appellees.

Before McBRIDE, SAMUEL and HALL, JJ.

McBRIDE, Judge.

The late Jacques E. Blevins entered into an agreement with plaintiff to the effect that the latter was to receive from Blevins as his compensation for any 'properties or prospects you put me in touch with in the Paradis Field a 1/96th interest in any oil, gas and mineral leases I may take or secure as a result of your efforts and assistance. This interest is to be in the nature of an overriding royalty interest * * *. When and as each deal is closed, I am to execute and deliver to you in due course an assignment covering your interest * * *.' The agreement was confirmed by Blevins' letter to plaintiff bearing date May 27, 1939, from which the above-quoted language was extracted. Blevins further stated in said letter: 'The deals in connection with which I am obligated to you at the present time are as follows:

'1. * * *

'2. All property of Mr. and Mrs. H. C. Campbell, consisting of 30 acres tract and some other lots or parcels of land.

'3. * * *

'4. * * *

On June 15, 1952, the agreement was modified to the extent as stated in a letter written by Blevins to plaintiff (which was confirmed and approved by plaintiff), reading:

'Mr. E. M. Collier

'Paradis, Louisiana

'Re: Property of Mr. and Mrs.

'H. C. Campbell in Paradis,

'St. Charles Parish, Louisiana

'Dear Mr. Collier:

'This agreement is to modify our prior agreement with respect to the property of Mr. and Mrs. H. C. Campbell located in the Town of Paradis, St. Charles Parish, Louisiana.

'It is agreed that in consideration of the compromise I have been able to work out of the existing litigation affecting Farm Lots 11 to 16 in Paradis our prior agreement with respect to the Campbell property is hereby amended and it is agreed that in lieu of any other consideration to which you may have been entitled, you are to receive the sum of $1,750.00 out of the proceeds of the 1/16 of 8/8 of production from the overriding royalty funds now impounded by The Texas Company in the registry of the Court. The said sum of $1,750.00 is to be paid to you simultaneously with the release of the said funds, whenever the same are released by the Court.

'Please confirm the foregoing agreement by signing and returning to me a copy hereof.

'Very truly yours,

'Jacques E. Blevins

'I hereby confirm and approve the agreement set out in the foregoing letter.

'Earl M. Collier

'Witness:

'Margaret E. Lauer'

On August 31, 1953, Blevins died.

On August 15, 1955, a corporation known as Marshland Oil Corporation sent plaintiff its check payable to his order for $1,750, accompanied by a letter reading as follows:

'Mr. Earl M. Collier

'Paradis

'Louisiana

'Dear Mr. Collier:

'The proceeds payable to the late Mr. Blevins, on deposit in the Civil District Court for the Parish of Orleans in the concursus proceeding provoked by The Texas Company against A. J. McDonald, et al, have been paid to this corporation as Trustee for Mr. Blevins. By virtue of its authority from Mr. Blevins the funds are to be disbursed to those to whom they were assigned.

'Accordingly, the amount of $1,750.00 due to you by Mr. Blevins and payable out of the said deposited funds is now available and check for said amount is enclosed herewith.

'This payment is made in accordance with your agreement with Mr. Blevins dated June 15, 1952, recorded by you in the Conveyance Office of St. Charles Parish, Louisiana, on June 17, 1952, and appearing in Conveyance Book #1, debt or claim against a party deceased when

'Very truly yours,

'Marshland Oil Corporation'

Plaintiff has never cashed the $1,750 check. On the same day he received it his attorney tendered the return of the check to Marshland Oil Corporation which refused the tender.

This suit was filed by plaintiff on December 15, 1955. Impleaded as defendants are: (1) Blevins' executrix, (2) Margaret E. Lauer, (3) Marshland Oil Corporation, and (4) Paradis Oil Corporation. Plaintiff alleges in his original and supplemental and amended petitions that on June 12, 1939, Blevins acquired a 1/2 mineral interest in the Campbell property; that plaintiff 'mislaid' the letter of May 27, 1939, and had forgotten about it; that in an effort to cheat and defraud plaintiff Blevins called upon him to sign the modifying agreement of June 15, 1952, falsely representing that 'he had to settle for 1/3' the litigation mentioned therein; that at the time Blevins had not 'worked out' a compromise; that Blevins gave plaintiff no consideration whatever as the $1,750 he agreed to pay he had already collected on the proceeds of oil from the Campbell land; that said agreement was postdated, is null and void; that Blevins falsely represented he had received 'no payment coming to plaintiff under the that 'debt' and 'obligation' were said false representation; that there has been produced from the lands covered by the agreement of 1939 a total of 750,103 barrels of oil of which plaintiff is entitled to his 1/96 thereof which has a value of $19,533.70; that plaintiff is entitled to a 1/96 of all oil produced in the future; that Margaret E. Lauer, the confidential secretary of Blevins, and the 'dummy' corporations known as Marshland Oil Corporation and Paradis Oil Corporation, all of the stock in which was owned by Blevins, joined in the efforts of Blevins to defraud plaintiff in that Blevins' royalty deeds and leases were fraudulently placed in their names without consideration; that the acts done in defrauding plaintiff of his rights should be annulled and set aside and that the property standing in the name of Margaret E. Lauer and said corporations should be decreed as belonging to the Succession of Blevins. Judgment is prayed for against all defendants decreeing their indebtedness to plaintiff for $19,533.70; that the Campbell property belongs to Blevins' estate and that plaintiff is the owner of a 1/96 royalty interest therein; that defendants be condemned to account to plaintiff for all oil produced, and for rentals, bonuses, receipts, etc., and that he have judgment for his share thereof; that plaintiff's future rights under the agreement of 1939 be reserved.

Defendants interposed several exceptions to the petitions and none, save one, need be considered or discussed. In their answers defendants generally deny all averments of fraud leveled against them.

After a trial on the merits of the case, judgment was rendered in favor of all defendants dismissing plaintiff's suit, from which he has appealed.

Blevins' executrix sought to have the suit dismissed on the exception that plaintiff's rights, if any he may have had, are unenforceable because of the provisions of LSA-R.S. 13:3721, which read:

'Parol evidence shall be incompetent and inadmissible to prove any debt or liability upon the part of a party deceased, if a suit upon the asserted indebtedness or liability shall have been brought more than twelve months after the death of the deceased.'

Blevins departed this life on August 31, 1953, and on September 10, 1953, his succession was duly opened. The instant suit was not filed until December 15, 1955, more than two years after the death. The lower court overruled such exception holding that LSA-R.S. 13:3721 provided no prescription and was but a restrictive statute limiting the type of evidence admissible to prove a the type of evidence admissible to prove a suit thereon is brought more than one year after death. This ruling was correct. The purpose of the statute is to protect the property of decedents from stale and unfounded claims that might be refuted by his testimony were he able to defend himself. Succession of DeLoach, 204 La. 805, 16 So.2d 361.

Plaintiff first called Margaret E. Lauer, testamentary executrix of Blevins, under cross-examination, who, over the strenuous objections of defendants' counsel that parol evidence was inadmissible, gave certain testimony which need not be detailed for it has no probative force anent the issues in the case. However, during her cross-examination, the trial judge made his ruling that parol evidence was inadmissible since the suit had been filed over two years after his death. No error appears in such ruling.

The provisions of LSA-R.S. 13:3722 are applicable in this suit. Plaintiff is seeking to set aside a compromise he admittedly entered into. The rescission of the compromise would be a necessary step before he could proceed further to prove the debt or liability of the decedent. In the case of Laterriere v. Board of Levee Com'rs of Orleans Levee Dist., 182 La. 1060, 162 So. 773, the Supreme Court recognized that 'debt' and 'obligation,' which synonymous, and, therefore, 'debt' in its general sense means 'obligation,' which covers money, goods, or services. In Succession of DeLoach, supra, the provisions of the section were held to be applicable in an action to recover realty from the succession of a deceased brought more than eighteen years after decedent's death as such liability could not be established by parol.

Plaintiff then offered certain documents in evidence, including the final account in the Succession of Blevins; the original agreement between Blevins and plaintiff of May 27, 1939; a photostatic copy of a compromise between Paradis Oil Corporation and Sunset Realty & Planting Co., Inc., and the judgment thereon; copies of certain pleadings in the matter of Liquidation of the Hibernia Bank & Trust Company, No. 202,253 of the docket of the Civil District Court for the Parish of Orleans; the letter of June 15, 1952, written by Blevins to plaintiff and accepted by the latter modifying their...