Doucet v. Fontenot

• Decision Date: 18 January 1928
• Docket Number: 28695
• Citation: 165 La. 458,115 So. 655
• Court: Louisiana Supreme Court
• Parties: DOUCET et al. v. FONTENOT et al. LEJEUNE v. SAME. MENOU v. DOUCET et al

115 So. 655

165 La. 458

DOUCET et al. v. FONTENOT et al.

LEJEUNE v. SAME.

MENOU v. DOUCET et al

No. 28695

Supreme Court of Louisiana

January 18, 1928

Rehearing Denied February 13, 1928

Appeal from Fifteenth Judicial District Court, Parish of Acadia; W W. Bailey, Judge.

Separate actions by Mrs. Marie Doucet and others and by Mrs. Anna Lejeune and others against Louis Fontenot and others, and action by Jules Menou against Remy L. Doucet and others. From the judgments rendered, separate appeals were taken.

Judgment in the first action reversed, with instructions, and judgments in the other actions affirmed.

Medlenka Bruner & Chambers, of Crowley, for appellant Menou.

W. J. Carmouche, of Crowley, for appellees Mrs. Marie Doucet and others.

ST. PAUL, J. OVERTON and LAND, JJ., dissent, O'NIELL, C. J.

OPINION

ST. PAUL, J.

These are three separate appeals, taken in three separate cases, entitled and numbered (in the court below) as above. They present two distinct issues, to be set forth hereafter. The appeal in the case first named brings up one of said issues; the appeal in the case next named brings up the other issue, entirely distinct from but somewhat dependent on the issue presented in the first named; the appeal in the last-named case simply brings up the last issue in another form, and is therefore wholly dependent on the result in the first two cases. All the facts are undisputed and are as follows:

I.

On May 26, 1884, Clemile Doucet, then unmarried, entered 160 acres of public land, situated in this state, under the public land laws of the United States. On May 4, 1886, he married Anna Lejeune under the regime of the community of acquets and gains existing in this state, and lived with her on said lands up to the time of his death (28 years afterwards). On September 18, 1889, he made final proof as to said lands and obtained his final certificate therefor on February 20, 1890, entitling him to a patent, which he received some months later.

On December 16, 1914, said Clemile Doucet died, intestate and fully solvent; and leaving the aforesaid 160 acres of land, on which he had resided with his wife and family until his death, apparently unincumbered and free of all debts.

At the time of his death he left, as his survivors, his widow in community, the aforesaid Mrs. Anna Lejeune, and nine children born of said marriage, some of them still minors at the time, since three of them were still minors at the time this litigation began (August 4, 1926), to wit: (1) Remy L. Doucet; (2) Alphonse N. Doucet; (3) Clemile Christy Doucet; (4) Marie Doucet; (5) Lydia Doucet; (6) Adam C. Doucet; (7) Walter W. Doucet; (8) Lillian Doucet; and (9) Ethel Doucet.

II.

About six years after the death of Clemile Doucet, the husband and father, to wit, on August 14, 1920, the three children first named, to wit, Remy L. Doucet, Alphonse N. Doucet, and Clemile Christy Doucet, all then of age, and Mrs. Anna Lejeune, widow, as aforesaid, borrowed $ 10,000 from Jules Menou, plaintiff in the suit last named in the caption, entitled Jules Menou v. Remy L. Doucet et al., No. 6782 of the docket of the lower court, for the reimbursement whereof the four of them gave him their joint and several (solidary) two promissory notes, each for the sum of $ 5,000, and payable, respectively, December 1, 1921, and December 1, 1922, with interest at 8 per cent. from date and 10 per cent. attorney's fees in case of suit.

On October 24th, the makers of said notes had paid nothing on account thereof, or of the interest thereon, except $ 200 paid on July 17, 1923; and on November 13, 1924, said Jules Menou obtained judgment against them in solido for the full amount of said two notes ($ 10,000), with interest and attorney's fees, subject to a credit of $ 200 as aforesaid, to wit against Remy L. Doucet, Alphonse N. Doucet, and Clemile Christy Doucet, and against Mrs. Anna Lejeune, widow as aforesaid.

III.

Reverting now to the facts stated in paragraph I, supra, it will be observed that if the tract of land therein mentioned is to be considered as community property, i. e., as having formed part of the community between Clemile Doucet and his wife, Anna Lejeune, the latter then owns one half thereof in full ownership, the other half thereof belonging to the nine children, subject, however, to the usufruct of their mother. And in that case it will be seen at a glance that Mrs. Anna Lejeune, Remy L. Doucet, Alphonse N. Doucet, and Clemile Christy Doucet own between them a full two-thirds interest in the land, whilst the other six children own between them only the other third interest therein, subject to the usufruct of their mother.

On the other hand, if said tract of land forms no part of the community, but was the separate property of the husband, Clemile Doucet, then his widow, Anna Lejeune, has no interest therein whatsoever, and Remy L., Alphonse N., and Clemile Christy Doucet own between them only a one-third interest in said land, the other two-thirds interest therein belonging entirely to the other six children.

IV.

When Jules Menou sought to execute the judgment which he had obtained, as aforesaid, he attempted to seize a two-thirds interest in said land, claiming that said land was community property. He was promptly met by an injunction taken out by the other six children, who were not his judgment debtors, restraining him from seizing more than a one-third interest in said land; they claiming that the land was the separate property of their father. Thoseinjunction proceedings are entitled Mrs Marie Doucet et al. v. Louis Fontenot et al., No. 7442 of the docket of the lower court (Louis Fontenot being the sheriff in charge of the execution). The trial judge held with the plaintiffs in injunction, and Jules Menou appeals. The issue brought up by that appeal is therefore whether, under the facts stated, the 160 acres of land formed part of the community between Clemile Doucet and Anna Lejeune, his wife, or were the separate property of said Clemile Doucet.

V.

In Ford v. Edenborn, 142 La. 927, 77 So. 851, this court held that:

"Under sections 2291, 2292, Rev. St. U.S. [43 USCA §§ 164, 171; U.S. Comp. St. §§ 4532, 4543], no rights accrue to the entryman who dies before the entry is perfected, and nothing passes under the inheritance law of the state."

That "no rights accrue to the entryman who dies before the entry is perfected," and that, therefore, there is nothing to pass under the inheritance law of the state, is the only and inevitable conclusion to be drawn from the citations relied upon, to wit, McCune v. Essig, 199 U.S. 382, 26 S.Ct. 78, 50 L.Ed. 237, holding (syllabus) that, "under sections 2291 and 2292, Rev. Stat., the widow of the entryman is first entitled to complete the entry and obtain a patent, and a state law is not competent to change this provision and give the children of the entryman an interest paramount to that of the widow"; and Shiver v. United States, 159 U.S. 491, 16 S.Ct. 54, 40 L.Ed. 231, holding that "the land entered continues to be the property of the United States for five years following the entry, and until," etc.

And the time when the land entered ceases to be the property of the United States and becomes the private property of the individual is when the final proof is made and the final certificate issued. See the authorities cited in Trumbull v. Sample, 158 La. 629 (par. V), 104 So. 479.

Hence it has been held that where the land was entered during the marriage, but the final proof was made by the wife after the death of the husband, the land became the separate property of the wife and did not fall into the community. Richard v. Moore, 110 La. 435, 34 So. 593; Ford v. Edenborn, 142 La. 927, 77 So. 851. And again, that where the husband entered the land during the marriage but the final proof was made and the certificate issued to him after the death of the wife, the land became the separate property of the husband and did not fall into the community. Industrial Lumber Co. v. Farque, 162 La. 793, 111 So. 166. In Smith v. Anacoco Lumber Co., 157 La. 466, 102 So. 574, the court approved the doctrine that the title vested at the time the final proofs were made, not at the time the land was entered; for the statement of the case showed that the husband had entered the land during the marriage, and if that had sufficed to make the land community property this court would not have wasted its time over the other inquiry involved. The only case holding that the time of entering the land fixes its status as community or separate property is Crochet v. McCamant, 116 La. 1, 40 So. 474, 114 Am. St. Rep. 538. That case has been twice criticized. Ford v. Edenborn, 142 La. 927, 77 So. 851; Smith v. Anacoco Lumber Co., 157 La. 466, 102 So. 574. It is now formally overruled.

To follow the doctrine of that case would lead to this consequence, that if at the time Clemile Doucet entered the land he had been married to a first wife who had died or divorced him shortly afterwards and before he married Anna Lejeune, then the land would now belong one-half to that other woman, or to her children by him or by another, and one-half to the children of Clemile Doucet himself, to the entire exclusion of Anna Lejeune, who never could have acquired an interest in said land unless her husband died without completing the entry. And thus this remarkable state of affairs would have prevailed, that the first community would not have been destroyed by the dissolution of the first marriage, but only by the dissolution of the second marriage.

In Succession of Fay, 161 La. 1022, 109 So. 824, this court was asked to involve itself in a proposition tending that way but declined to do so. And properly so;...