Hall v. Hall

• Decision Date: 02 February 1961
• Docket Number: No. 9411,9411
• Citation: 127 So.2d 347
• Parties: Mrs. Alveta T. Lassetter HALL, Plaintiff-Appellant, v. Joseph F. HALL, Defendant-Appellee.
• Court: Court of Appeal of Louisiana — District of US

Page 347

127 So.2d 347

Mrs. Alveta T. Lassetter HALL, Plaintiff-Appellant, v. Joseph F. HALL, Defendant-Appellee.

No. 9411.

Court of Appeal of Louisiana, Second Circuit.

Feb. 2, 1961.

Rehearing Denied March 10, 1961.

Campbell, Campbell & Marvin, Minden, for plaintiffs-appellant.

Love & Rigby, Shreveport, for defendant-appellee.

Before HARDY, GLADNEY and AYRES, JJ.

AYRES, Judge.

Plaintiff appeals from a judgment sustaining an exception of no cause and of no right of action. The issue presented for resolution in reality relates solely to the sufficiency of plaintiff's allegations considered in connection with the documents attached to her petition to state or disclose a cause of action.

In giving consideration to an exception of this character, certain well-established principles must be borne in mind. For instance, it is elementary that all well-pleaded facts must be accepted and considered as true; that a petition stating a cause of action on any ground or as to any portion of the demand will not be dismissed on an exception of no cause of action; that, in determining whether or not a petition states a cause of action, the petition must be considered in its entirety; and all documents annexed to and made part of the petition must be given consideration inasmuch as the recitals or contents of exhibits attached to or made a part of a petition govern and control the allegations of the petition. Weber v. H. G. Hill Stores, Inc., 210 La. 977, 29 So.2d 33; Sladovich v. Glaser, 150 La. 918, 91 So. 297; Oliver v. Shreveport Mun. Fire and Police, etc., La.App.2d Cir., 1956, 88 So.2d 405, 408; Bourg v. Songy, La.App. 1st Cir., 1952, 61 So.2d 358.

The object of this action is the annulment and carcellation of a judgment obtained by defendant against plaintiff ordering and directing the cancellation and erasure from the mortgage records, a conventional mortgage and vendor's lien held by her and covering certain-described real property situated in Webster Parish, Louisiana. The nullity of the judgment is predicated on the ground it was obtained through fraud and other ill practices on the part of the defendant.

The material recitals of the pleadings and exhibits attached thereto disclose these facts:

Prior to June 23, 1955, plaintiff and defendant were married and, during their marriage, they acquired, as a part of the assets of the community of acquets and gains existing between them, certain real estate situated in the aforesaid parish and state. On the aforesaid date they were judicially separated by a judgment of court. Prior to this separation, they entered into a tentative agreement for the settlement of the estate existing between them. After their separation, the agreement was ratified and consummated. Pursuant thereto, plaintiff deeded to the defendant her one-half community interest in and to 30 lots located in Units 1 and 2 of the Plum Orchard Park Subdivision of Webster Parish, Louisiana, for a recited consideration of $7,000, $3,015.87 of which was recited to have been paid in cash and the balance of $3,984.13 represented by one promissory note of the defendant payable to plaintiff 24 months after date and bearing interest at 5 1/2% Per annum commencing 16 months after date. To secure payment of the aforesaid note, plaintiff retained a vendor's lien on the interest in said property sold and conveyed by her and the defendant specially mortgaged and hypothecated unto plaintiff the whole of said property.

By the terms of the agreement of settlement of their community estate, it was provided that in the event any of the aforesaid property was sold by defendant, plaintiff would be paid any cash as well as any vendor's lien notes, representing any credit portion of the purchase price; whereupon, she would cancel and erase, so far as the particular property sold was concerned, the mortgage and lien executed pursuant to their agreement of settlement. By credit of $241.16 allowed as of June 23, 1955, and $1,325 as of October 24, 1955, defendant's aforesaid indebtedness was reduced to $2,417.97. No further payments were made. However, on June 25, 1956, defendant instituted an action against plaintiff to cancel and erase the aforesaid vendor's lien and mortgage executed pursuant to their agreement of settlement of their community estate.

As a basis for said cancellation, defendant alleged he had, by separate sales, sold two lots in said subdivision for a total consideration of $2,800, $300 of which was paid in cash and the remainder represented by notes of the purchasers in the sums of $1,500 and $1,000, respectively, secured by vendor's liens and special mortgages on the property or lots conveyed. In substantiation of such sales, purported copies thereof were attached to his suit.

In the meantime, plaintiff had established her domicile in the State of Alabama and it was during her attendance in court on another matter that service was had upon her in defendant's suit. Plaintiff's counsel in that action took the citation and copy of petition served upon her and assured her he would take care of the matter and that it did not amount to anything. He told her not to worry about it. She never thereafter had any information about that suit until just prior to the commencement of the present action, when she returned to Louisiana for the purpose of making a collection of the balance due her when she discovered that her mortgage and vendor's lien had been canceled by a judgment and decree of court. Her present attorneys were then employed to make an examination of the proceedings which allegedly revealed that the two vendor's lien and mortgage notes which defendant had allegedly tendered to plaintiff as valid, subsisting obligations of the makers did not constitute valid obligations in that the purported sales with which they were alleged to have been identified had not been, nor were they ever, consummated; nor were the acts of sale ever inscribed on the public records.

Thus, plaintiff contends that the basis for defendant's claim for a cencellation of her vendor's lien and mortgage were false and untrue, and that, by the making of such false representations, and by procuring a judgment based thereon, a fraud had been practiced on her and on the court as well.

Alternatively, plaintiff alleged that, if she was not entitled to the annulment of the judgment ordering the cancellation of her vendor's lien and mortgage, the defendant should be required to deliver to her, with proof of their genuineness and validity as first mortgage obligations, the notes which he had alleged belong to and which he allegedly had tendered to her, together with an accounting for any and all collections made thereon; also, in the alternative, if the defendant could not produce those notes, with evidence of their continuing subsistence as valid obligations, secured by first mortgages upon the lots described in acts of sales identified therewith, then that she have judgment against the defendant for the aforesaid balance on defendant's original obligation.

From the allegations of plaintiff's petition and the documents attached thereto, it can only be concluded defendant owed plaintiff a balance of $2,417.97, represented by defendant's promissory note. The defendant had the option of discharging this obligation by either paying it or by delivering to plaintiff valid first mortgage notes of third parties purchasing property in the aforesaid subdivision. In the action to cancel plaintiff's mortgage, defendant alleged he...