Falgout v. Johnson
| Decision Date | 10 January 1939 |
| Docket Number | 35060. |
| Court | Louisiana Supreme Court |
| Parties | FALGOUT v. JOHNSON et al. |
Rehearing Denied Feb. 6, 1939.
Appeal from Seventeenth Judicial District Court, Parish of Lafourche; Robert B. Butler, Judge.
Action by Horace Falgout against Mrs. Thomas J. Johnson and others to annul a release of an option on ground of forgery and to be declared owner of a certain tract of land. Judgment for plaintiff, and defendants appeal; plaintiff moving to dismiss appeal.
Motion overruled, judgment annulled, and judgment entered for defendants.
Charles J. Rivet, of New Orleans, for appellants.
Harvey Peltier, Guion & Schulze and Cobb & Saunders, all of New Orleans, for appellee.
Appellee filed a motion to dismiss the appeal on the ground that this Court is without jurisdiction ratione materiae, alleging that the amount involved is less than $2,000, and the proceeding purely incidental to the execution of a judgment obtained in another case, and prays that we grant a rule to show cause why the appeal should not be dismissed.
The petition and answer herein show that both the plaintiff and the defendants are claiming the ownership of the tract of land in question and that it is admitted to be worth in excess of $2,000. The mere fact that one of the alleged links in plaintiff's alleged title to the land is a judgment in a lesion beyond moiety suit where the value of the property several years ago was fixed at $1,000, does not determine the value of the land at the time this suit was filed nor the nature of this action. The present proceeding is not a mere incident to the execution of the judgment of lesion beyond moiety but an action in which the plaintiff claims the ownership of the property alleging that the defendants' alleged right thereto was predicated upon a forged instrument. As the main demand is for recognition of the plaintiff as owner of the property and for possession thereof, and since the property is admittedly worth in excess of $2,000, this Court has jurisdiction ratione materia. Ward v. Lynn, 149 La. 1048, 90 So 399; American Well & Prospecting Co. v. Lillie Oil Co., 128 La. 660, 55 So. 8; Hardeman Co., Ltd., v Caddo Concrete Const. Co. et al., 138 La. 107, 70 So. 53, and Stokes v. New Orleans Public Service, Inc., 173 La. 405, 406, 407, 137 So. 195.
In support of his contention that this Court is without jurisdiction, counsel for appellee has called our attention to the following authorities: Smith v. Merchants' Mutual Ins. Co., 33 La.Ann. 1071,Louisiana Western Lumber Co., Inc., v. Stanford, 178 La. 1052, 152 So. 755, and Lhote & Co. v. Church Extension Soc. of Methodist Episcopal Church et al., 115 La. 487, 39 So. 502. These authorities are not in point for the reason that the plaintiffs in those cases obtained judgments for amounts less than $2,000, and under writs of fieri facias seized property in excess of the value of $2,000, in order to satisfy their judgments. The Court uniformly held that the amount in dispute was the amount of the judgment and not the value of the seized property.
We, therefore, refuse to grant a rule nisi herein and overrule the motion to dismiss the appeal.
On the Merits.
The plaintiff instituted this proceeding to be declared the owner of a certain tract of land, to have annulled a purported release of an option thereon on the ground of forgery, and to have the registration of the alleged instrument cancelled from the conveyance records. The defendants denied that the plaintiff's name had been forged and averred that his signature was genuine and that they were the owners of the property. The plaintiff asked for a trial by jury, which returned a verdict in his favor, as prayed for, and judgment was accordingly rendered. The defendants' application for a new trial was denied by the district judge and they have appealed.
It is conceded that the defendants bore the burden of proving by a preponderance of the evidence the genuineness of the disavowed signature. Watts v. Collier, 140 La. 99, 72 So. 822, Huddleston v. Coyle, 21 La.Ann. 148, and Succession of McDonogh, 18 La.Ann. 419.
It is also conceded, since only on issue of fact is involved, that the defendants, as appellants, must show that the verdict of the jury and the judgment of the trial court are manifestly erroneous, in order to justify their reversal. Hill v. De Soto Parish School Board, 177 La. 329, 148 So. 248; Ratcliff v. Levin, 175 La. 49, 143 So. 1; Mills v. Mills, 173 La. 795, 138 So. 671; Williams v. Dupuy, 184 La. 735, 167 So. 425.
The defendants' counsel contend that they have fully proved their case and discharged the burden imposed upon them by law, and counsel for the plaintiff argue that they have not done so.
The record shows that the late Thomas J. Johnson, owner of the property in controversy herein, and husband and father of the defendants respectively, entered into a contract of lease with the plaintiff, Horace Falgout, dated February 6, 1931, which contained a provision giving the lessee the right to purchase the property for the sum of $250. Horace Falgout borrowed $250 from his uncle, Leon Falgout, and exercised the option to purchase the property by depositing that sum of money in a bank, in accordance with the provisions of the ageement. Shortly after the lease was signed, Johnson died, and his widow and heirs refused to carry out the agreement, because they claimed that, due to Johnson's feeble and sick condition, Horace Falgout had imposed upon him. Horace Falgout then entered a suit against the widow and heirs for specific performance of the contract, and the defendants pleaded imposition and, in the alternative, lesion beyond moiety. The case was tried on its merits and the district judge rendered a judgment rejecting the defendants' first defense, but sustained the plea of lesion beyond moiety, fixing the value of the property at $1,000 and giving Horace Falgout the option either to surrender the property upon the return of the $250, less certain credits, or to retain the property upon the payment of the additional sum of $750, with 5% interest from October 14, 1932, to date of settlement; and that if he failed to elect to retain the property by making the required payment, his claim to the title would be cancelled upon production of his receipt, showing the return of the money deposited, or in case he refused to accept the money, upon the deposit of the amount in the registry of the court, subject to his orders. The judgment was dated April 24, 1933, and condemned him to pay the cost of the suit. None of the parties appealed.
After the judgment became final, the attorney for the defendants, by telephone and letters, called upon the plaintiff's counsel to inform him what disposition their client intended to make of the matter. He was advised by the plaintiff's attorneys that they were unable to get their client to arrive at a decision and had some difficulty in getting him to come to their offices and they stated that they had no objection to the defendants' counsel approaching Falgout direct. The attorney drew a rule against Falgout to show cause why he should not elect to exercise the option granted him in the judgment and also prepared a release of the option in consideration of the return of the deposit. He also withdrew from his account in the bank $250 cash for the purpose of making a legal tender to Falgout.
The defendants' attorney, Joseph O. Schwartz, and Thomas J Moore, one of the defendant's sons, left New Orleans on May 16, 1933 by automobile and drove to Lockport, where they were joined by Harris J. Waguespack, a deputy sheriff, cattleman and trapper, who was interested in leasing the property, and they went to Gheens Store on Bayou Lafourche, where they met Horace Falgout, who operated a butcher shop there. Schwartz requested Falgout to make up his mind either to retain the property by paying the balance of the price fixed by the judge or release the property upon the return of the deposit. Falgout refused to give any answer to the question, stating he had not decided what to do. He was then asked if he had sufficient money to pay the balance, which would be due the defendants under the judgment if he retained the property, and he said that he did not. Schwartz, in the presence of Moore and Waguespack, counted out in cash a sum in excess of the amount due the plaintiff under the judgment and tendered it to him, but he declined to accept it. Schwartz then informed the plaintiff that he would be compelled to rule him into court to show cause why he should not elect to accept or surrender the property. The three men returned to the automobile, it being Schwartz's intention to go to the district courthouse at Thibodaux to file the rule, but upon Waguespack's suggestion that, in examining the title, he had learned that Leon Falgout had advanced the $250 to his nephew, Horace Falgout, for the purpose of making a deposit in the bank to exercise the option under the lease to purchase the property, and that it might be a good idea to consult Leon Falgout, the parties went to Leon's home. They arrived there about 11 o'clock in the morning and stated the purpose of their visit. Horace Falgout, apparently surmising where they were going, followed them in his own car and arrived at his uncle's home shortly after the three men got there. Leon Falgout invited the parties into the front room, where Schwartz told Leon Falgout that Horace Falgout would not give them a decided answer about exercising the option under the judgment, and that it was his intention, in order to bring the matter to a final termination, to file a proceeding in court to force him to elect. The written release was produced and the sum of $225 was then paid to...
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