Hyman, Lichtenstein & Co. v. Schlenker & Hirsch

• Decision Date: 01 February 1892
• Docket Number: 10,869
• Citation: 44 La.Ann. 108,10 So. 623
• Parties: HYMAN, LICHTENSTEIN & CO. v. SCHLENKER & HIRSCH. MRS. C. SCHLENKER v. WM. ROBB, SHERIFF, ET AL. (CONSOLIDATED)
• Court: Louisiana Supreme Court

10 So. 623

44 La.Ann. 108

HYMAN, LICHTENSTEIN & CO. v. SCHLENKER & HIRSCH.

MRS. C. SCHLENKER v. WM. ROBB, SHERIFF, ET AL. (CONSOLIDATED)

No. 10,869

Supreme Court of Louisiana

February 1, 1892

APPEAL from the Seventh District Court for the Parish of Catahoula. Ellis, J.

J. N Luce, Gus. Lemle, D. N. Thompson and Farrar, Jonas &amp Kruttschnitt, for Plaintiffs and Appellants.

Percy Roberts and J. L. Dagg, for Intervenor and Appellee.

OPINION

FENNER J.

This appeal presents, for our determination, a contest between the attaching creditors of a non-resident debtor and the non-resident wife of the debtor, who claims the property attached by virtue of a dation en paiement made to her by her husband while they were both non-residents of Louisiana and domiciled in the State of Mississippi.

The dominant facts are the following:

Isaac Schlenker and his wife, Mrs. C. Schlenker, were married at their domicil in Trinity, Louisiana, in 1859. Between the years 1866 and 1874, while they were still domiciled in Louisiana, Mrs. Schlenker claims to have received from an uncle and from her mother certain paraphernal gifts of money and goods amounting to about $ 7600, which her husband took possession of and converted to his own use. In 1878, her husband executed a dation en paiement in her favor, by which he conveyed to her various pieces of landed property, including:

1. A tract of land known as the Elba or Zenor tract.

2. Sundry lots and buildings situated in the towns of Troy and Trinity.

The attaching creditors attack the consideration of this dation, and if proof thereof were required, that found in the record is certainly not as conclusive as it should be; but we think the creditors, having become such long after the dation, have no right to attack it. Lewis vs. Peterkin, 39 An. 780.

Subsequently Mrs. Schlenker alienated several of these properties, and the sums are claimed to have been appropriated by her husband to the payment of his debts.

These alienations were as follows, viz.:

1. In June, 1878, she conveyed the Zenor tract for the price of $ 3500.

2. In March, 1881, she conveyed the Cates or Rawlings lots in Troyville, on which the price actually realized was $ 350.

3. In 1888 she sold a storehouse and lots in Troyville and a residence and lots in Trinity for $ 2500.

She also claims to have sold another lot in Trinity to McCabe for $ 100, but the deed is not produced.

In December, 1890, Isaac Schlenker made a second dation en paiement to his wife, from which we make the following extract:

"Before me, J. F. Ellis, a notary public in and for Catahoula parish, Louisiana, personally appeared Isaac Shlenker, who declared to me, notary, that he is justly and legally indebted to his wife, Mrs. Charlotte Schlenker, in the sum of seven thousand two hundred and fifty dollars.

* * * "The said above amount being the proceeds of sale of one storehouse and lots in Jonesville (or Troyville), Louisiana; the Cates or Rawlings house and lots in Jonesville, La., and dwelling house and lots in Trinity, La." * * *

It thus appears that the only paraphernal debts expressed in the act as intended to be extinguished are those arising from the appropriation by the husband of "the proceeds of sale" of the particular pieces of paraphernal property therein mentioned.

As we have seen, these "proceeds of sale," according to the wife's own showing, did not exceed the sum of $ 2950, while the dation conveyed to the wife property estimated in the act itself at $ 6560, and claimed by the creditors to be worth much more.

On the trial of the case counsel for the wife undertook to eke out the consideration, by parol proof that the dation was intended to satisfy other paraphernal claims of the wife besides those expressed in the deed, including the sum of $ 3500 received as the price of the Zenor plantation, $ 1100 collected as rents of paraphernal property, and a balance due on the original claim, unsatisfied by the first dation, of $ 621.93.

To such evidence objection was made on the following grounds, viz.:

"Parol evidence can not be admitted against or beyond what is contained in the alleged dation en paiement of intervenor's husband to her; nor as to what may have been said or done before, at the time of, or since making said act; nor to vary, contradict, explain, or modify the written terms, considerations or recitals of said act; nor to show source or origin of the consideration, different from that expressed in the instrument. That such evidence, if otherwise admissible, could not be introduced by intervenor, who has claimed under such act; that it is not admissible under the pleadings, there being no averments of such fact, and can not be introduced to affect plaintiffs, who are third persons, and can only be bound by the record."

The judge overruled these objections, and admitted and gave effect to the evidence.

In this we are bound to hold that the judge was in error.

A dation en paiement by a husband to his wife can not be made otherwise than by authentic act. The extraordinary and highly exceptional effects given by the law to this contract, exempting it from the revocatory action and maintaining it as a preference over creditors, though made while the husband was insolvent, emphasize the necessity of holding the parties bound by the recitals contained in the act, and not permitting them to enlarge or extend its provisions by parol proof. The creditors, when they took/out their attachment, had no notice of, and were not affected by, any dation between this debtor and his wife, except that evidenced by the authentic act extant upon the records of the parish, and could not be bound by any agreements or understandings between the parties not embodied in that act. Moreover, the wife herself, in her intervention, propounded that act as her title, and made no allegation of any error therein.

The act specifically recites, as the only paraphernal claims satisfied by the dation, the moneys due by the husband for the price of particular properties therein stated. To hold that other and different paraphernal claims entered into the consideration and were satisfied by the dation, on mere parol proof, would be, to that extent, to give effect to a dation by parol.

Even if proof of error were admissible, the proof found in this record is insufficient to establish it.

We dislike to speak with confidence touching the contents of this enormous transcript, which we have been left to eviscerate with hardly any references to pages by the counsel; but if there is any other evidence as to this error except the statement of Mrs. Schlenker herself, it has failed to attract our attention. She says that the intention of Mr. Schlenker and herself was to have the sale made in satisfaction of all her paraphernal claims, and, on the subject of the deed, she says: "I do not know if the deed properly recites the consideration, not having the same before me, but if it does not, there must have been some error in drawing it up."

Of course, we have nothing from the husband on the subject because he was incompetent to testify. There is nothing to show that the notary who drew the act did not conform to the instructions given him, or that the parties who signed it did not read and know its contents, nor is any reason given why the alleged error escaped attention. Surely, it would be a dangerous precedent to allow the recitals by such an act to be varied by the unsupported declarations of error by a single party thereto. As the deed stood, undoubtedly the paraphernal claims, outside of those mentioned therein, remained unaffected by the dation; and, in after years, might have formed a consideration for a third dation when the interests of the parties required it, in which case the statement of the wife as to her intentions might not have been accessible.

We consider the case fully covered by a former decision, where the dation having been made in satisfaction of a particular named paraphernal claim, which the court found to be invalid, the parties ought to sustain it by proof of other valid paraphernal claims, but we held them bound by the consideration stated in the deed. Chaffe vs. Schlen, 34 An. 688.

Having thus defined the meaning and extent of the act as embracing, for its consideration, only the paraphernal claims therein recited, we will next consider the important questions arising from the domicil of the parties.

The attaching creditors are citizens and residents of Louisiana.

It is conceded that at the date of the dation Mr. and Mrs. Schlenker were domiciled in the State of Mississippi. It is claimed, however, on behalf of the wife, that the Mississippi domicil was only acquired in 1889, after the transactions here involved took place, and that, prior thereto, their domicil continued to be in Louisiana.

No doubt, the presumption of law is in favor of the continuance of a domicil once established, and that the party who asserts that it has been changed carries the burden of proof. The evidence of Mrs. Schlenker herself, which is candid and unequivocal, establishes that in 1882 her husband, with his family and the whole of his household effects, removed from their former domicil in Trinity, La., to New Orleans, La discontinuing the mercantile business which he had theretofore conducted in Trinity, and establishing his residence in New Orleans, where he kept house for a year. In 1883 Schlenker moved with his family to Natchez, Miss., carrying all his household effects, established his residence there, went into mercantile business there, has resided and kept house and transacted business there ever since, and has had no other residence. He has reared his children and married two of them in Natchez. There has been...