Cusimano v. Ferrara

• Decision Date: 02 July 1930
• Docket Number: 30315
• Citation: 170 La. 1044,129 So. 630
• Court: Louisiana Supreme Court
• Parties: CUSIMANO v. FERRARA et al

129 So. 630

170 La. 1044

CUSIMANO v. FERRARA et al

No. 30315

Supreme Court of Louisiana

July 2, 1930

Appeal from Twenty-First Judicial District Court, Parish of Tangipahoa; Nathan B. Tycer, Judge.

Action by Jac. Cusimano against Dominick Ferrara and another. From a judgment for defendants, plaintiff appeals.

Reversed and rendered.

S. S Reid, of Amite City, for appellant.

Rownd &amp Warner, of Hammond, for appellees.

OPINION

ST. PAUL, J.

This is an action en declaration de simulation. The purpose thereof is to set aside and annul a sale of 40 acres of land by Dominick Ferrara to Thomas Ferrara, his son, executed on May 17, 1923, and to subject said land to a judgment in favor of the plaintiff against the father. From a judgment in favor of the defendants, the plaintiff appeals.

I.

On July 20, 1922, the Strawberry Growers' Association executed its note in favor of plaintiff for $ 4,000, due April 20, 1923. This note was indorsed by Dominick Ferrara, Vincenzo Nicolosi, Paolo Nicolosi, V. S. Dantoni, Joe Sasso, Tony Giovanni, and Angelo Nicolosi.

When the note became due, it was not paid, and shortly thereafter, to wit, on October 19th 1923, plaintiff obtained judgment thereon against the maker and all the indorsers thereon in solido.

Before this judgment was obtained, but shortly after the note became due, to wit, on May 17, 1923, Dominick Ferrara, one of the indorsers thereon, who was the father of nine sons, all unmarried, and residing with him on the premises in controversy, sold to his eldest son all the cattle on the place for a named consideration of $ 1,000, and on the same day sold to his second son, Tom, who was emancipated on that same day, the property here in controversy for the named consideration of $ 400 cash and the assumption of a vendor's lien upon the property for $ 600. The father thereby disposing of all his property subject to seizure, and having nothing left.

After this the father continued to reside upon the property, and resides there still. Owing to this, and to the near relationship between the parties, the sale is presumed to be simulated, unless the contrary be clearly shown. Pruyn v. Young, 51 La. Ann. 320, 25 So. 125; Lawson v. McBride, 121 La. 282, 46 So. 312; Weil v. Scarbrock, 156 La. 159, 100 So. 290.

We are satisfied that the father remained in control of the property after the alleged sale to his son. Two witnesses, plaintiff and Distefano, testify that he shipped the strawberries off the place in the year 1924, and this is corroborated by the fact that the son made no deposits in the bank until April, 1926, after which he made deposits regularly until August of that year.

As to the cash money, $ 400, alleged to have been paid, the testimony of the father and son is that the son had been working some years in a sawmill and had given his earnings to the father to keep. But no account was kept of the moneys thus given, and the two of them testify only in a most general way that the money given the father amounted to $ 400. We do not think this proof sufficient, for the father testifies that he also owed his eldest son $ 1,000 for which he sold him the cattle on the same day, and the consequence of accepting such testimony as true would be to believe that the father owed his two sons $ 1,400 and discharged it all at once by turning over to them all his property in one day, although the whole amount of said property still continued under the control of the father and to be used by him and his nine sons in the same way as before the alleged transfer.

As to the assumption of the $ 600 of vendor's lien upon the property, the fact is that said lien had been paid off before the sale to the son was made. This, however, might be explained by the fact that, although the vendor's lien had been paid, nevertheless the father had placed a mortgage on the property, and it was this mortgage which the son meant to assume. But the trouble here is twofold: First the mortgage was for only $ 500 and not $ 600, showing that the parties were more anxious to get through with the transfer than to be exact about the account between them; and, secondly, the indebtedness in the mortgage was not considered by the parties as the indebtedness of the son, but of the father. For two years after the sale of the property, to wit, on April 26, 1925, the father obtained, or renewed, a loan of $ 500 from the Citizens' National Bank on Pledge of said mortgage note, and the son testified that he took up said note "because the old man he cannot pay it." And there is no pretense or suggestion that the mortgage note was ever taken up before that. In other words, both the father and the son treated the $ 500 balance due on the mortgage as the obligation of the father and not of the son.

In our opinion the transaction was a pure and simple simulation,...