Johnston v. Bearden

• Citation: 127 So.2d 319
• Decision Date: 02 February 1961
• Docket Number: No. 9381,9381
• Parties: E. R. JOHNSTON, Administrator, et al., Plaintiffs-Appellants, v. Mrs. Florence J. BEARDEN et al., Defendants-Appellees.
• Court: Court of Appeal of Louisiana (US)

Page 319

127 So.2d 319

E. R. JOHNSTON, Administrator, et al., Plaintiffs-Appellants, v. Mrs. Florence J. BEARDEN et al., Defendants-Appellees.

No. 9381.

Court of Appeal of Louisiana, Second Circuit.

Feb. 2, 1961.

Rehearing Denial March 10, 1961.

Certiorari Denied April 24, 1961.

Dhu and Lea S. Thompson, Monroe, Waltman & Napper, Ruston, for appellants.

Barham, Wright & Barham, Ruston, Rabun & Dawkins, Farmerville, for appellees.

Before HARDY, AYRES, and BOLIN, JJ.

AYRES, Judge.

This is an action to annul and erase from the conveyance records, as null and void, two deeds wherein Mrs. Stella King Johnston purportedly conveyed to her daughter, Mrs. Florence Johnston Bearden, a tract of land comprising 220 acres, for a recited consideration of $3,300, and an undivided 1/2 interest in and to another tract of 100 acres for a recited consideration of $750. Both are purported to be cash transactions.

Mrs. Johnston's children and grandchildren, other than Mrs. Bearden, on learning of the execution and recordation of the aforesaid deeds, filed a suit seeking the appointment of a curator for Mrs. Johnston and, based on that application, E. R. Johnston was named administrator pro tempore and he, thereupon, in that capacity, instituted this action to set aside said deeds on the grounds that Mrs. Johnston, at the time of the execution of said documents, was not of sufficient mental capacity to know and understand the purport of or to consent to the execution of those deeds; that the deeds were simulated and no real consideration was paid for the property; and that the transactions were illegal, null and void because of lesion. Before the issues thus presented could be put at issue and tried on the merits, Mrs. Johnston died, whereupon E. R. Johnston, after due proceedings had, was appointed administrator of her succession. The administrator, in his individual as well as in his representative capacity, was thereafter joined by J. R. Johnston, O. F. Terrall, Verlin Roberts Hammons, and Louise Roberts Averitte, all of whom were substituted as parties plaintiff and who are, with the defendant, Mrs. Florence Johnston Bearden, the sole and only heirs of Mrs. Stella King Johnston.

The principal grounds upon which plaintiffs attack the validity or reality of the aforesaid deeds is, as set forth in the original and supplemental petitions, that they are mere simulations, pure and simple, in that no consideration was paid or intended to be paid for the property, and that the transactions by which they were procured constitute a fraudulent scheme of Mrs. Bearden, participated in and assisted by her husband, daughter, and son-in-law to secure the property without the payment of any price therefor. Other grounds of attack are (1) that Mrs. Stella King Johnston, 84 years of age at the time the instruments were executed, was mentally incompetent; (2) that, if said transactions be deemed donations, they were null and void because the donor divested herself of the whole of her property without retaining sufficient for her own subsistence; (3) further, if said transactions be deemed donations, they are null and void as constituting donations in disguise; (4) that the consideration, if any, paid, was less than 1/2 the value of the property and, hence, null and void because of lesion beyond moiety; and (5) that, in any event, said transactions infringed upon the legitime reserved to them by law. The defendants, Mrs. Bearden and her husband, S. J. Bearden, contend that the transfers were made in good faith and for a good, valid, and sufficient consideration.

The trial court concluded that plaintiffs did not sustain, by a preponderance of the evidence, that the transactions constituted simulations, or were donations in disguise, or were induced by fraud. It was further held that the deeds could not be attacked for lesion by only a portion of the heirs. Accordingly, plaintiffs' demands were rejected and they have appealed.

O. P. Johnston and Mrs. Stella King Johnston were pioneer residents of Union Parish. During their marriage, they acquired the property involved in this action. The husband made a dation en paiement of the 220-acre tract to his wife. Later, they moved to Morehouse Parish where they resided for many years. The husband died in 1954. The widow continued to live at their residence established in Morehouse Prish until June, 1956, when she made her home with her daughter, Mrs. Florence Johnston Bearden, and her husband. Thereafter, during the brief period Mrs. Johnston survived, Mrs. Morene Bearden Russell, daughter of Mr. and Mrs. Bearden, and her husband, Sam Russell, frequently visited in the Bearden home. Mrs. Russell ran errands for and drove her grandmother wherever she desired to go, and occasionally was entrusted, to some extent, with the business affairs of Mrs. Johnston, with whom she had become a confidant.

On August 14, 1956, Mrs. Johnston, after having made her home with the Beardens for six or eight weeks, was driven to Bastrop where she withdrew, from the bank, the sum of $2,794.70 in two withdrawals on the same date, in the respective sums of $1,000 and $1,794.70, thus closing her account with the bank. Two weeks later, August 28, 1956, Mrs. Russell drove her grandmother, father and mother to Farmerville, where Mrs. Johnston executed the aforesaid deeds to her daughter. For funds required for the purported purchase of said property, Mr. and Mrs. Bearden, after arriving in Farmerville, negotiated a loan from The Farmerville Bank of $4,050, for which they executed their note payable December 28, 1956. To secure this loan, they pledged, as collateral, a time certificate of deposit issued to them by the bank in the sum of $5,189.86. The $4,050.00 loan, having been obtained in currency, was placed in a sack and delivered to Mr. and Mrs. Bearden who thereafter repaired to the courthouse, where, in the office of the clerk of court, the deeds, already prepared, were read and signed. The money was then counted out to Mrs. Johnston who placed it in her purse. After filing the deeds for record, the parties immediately returned to the Bearden home. Soon thereafter, Mrs. Johnston became ill and was eventually taken to a clinic in Farmerville where she died December 3, 1956.

During Mrs. Johnston's lifetime, Mr. and Mrs. Bearden made no inquiries or asked any questions as to the whereabouts or the disposition Mrs. Johnston made of the sum of $6,844.70 in cash, which had come into her possession through the closing of her account with the bank in Bastrop and through the purported sales herein involved. Nor did they, after Mrs. Johnston's death, manifest any interest in, or concern about, said funds; nor did they make any search or inquiry relative thereto.

Mrs. Russell was not called as a witness during the trial. Plaintiffs' attempt to call her under cross-examination, by reason of an agency relationship with her grandmother, was objected to and the objection was sustained. However, in her discovery deposition, which was filed in evidence, Mrs. Russell testified that her grandmother placed with her the $4,050 received from the sale of the property. Moreover, the bank records disclosed that Sam Russell, August 31, 1956, the third day following the aforesaid sales, deposited with The Farmerville Bank, $4,200.16, of which amount $4,010 was cash, and, on that very day, issued a check to the bank on that account to pay the note given by Mr. and Mrs. Bearden for the money with which to make the purchases of the property herein concerned.

In regard to this deposit, it may be pointed out that Russell's testimony was vague, equivocal, and indefinite, particularly as to the amount of cash deposited, until confronted with the deposit slip. Moreover, his testimony as to the manner in which he claimed to have come into possession of this cash is likewise very unsatisfactory and unconvincing. Of the same character was Mrs. Russell's testimony in her discovery deposition. For instance, when questioned as to the disposition made by her of the funds of her grandmother, she stated she placed the funds in a bank but, on being pressed as to what bank, she disclosed that it was a toy bank which she kept at her residence. Defendants, in counsels' brief, say:

'The conclusion reached by the plaintiffs in their beief to the effect that the evidence shows that the Four Thousand Fifty and No/100 ($4,050.00) Dollars that was delivered to Mrs. Johnston at the time of the execution of the deeds was afterwards obtained from Mrs. Johnston, directly or indirectly by Mr. or Mrs. Bearden and thereafter deposited to the account of Mr. and Mrs. Russell and a check drawn by Mr. Russell on this account to pay the note that S. J. Bearden had signed, is merely a spectulation, a suspicion and a conclusion arrived at without any basis in evidence whatsoever. There is not one scintilla of direct evidence to show, and in fact the evidence shows differently than that the money was ever received either directly or indirectly by either Mrs. Florence Johnston Bearden or S. J. Bearden.

'Plaintiffs' theory that the money that was paid to Mrs. Johnston in the sum of Four Thousand Fifty and No/100 ($4,050.00) Dollars found its way from Mrs. Johnston into the hands of Mrs. Russell, of course, is true, but their projection that ultimately these were the same funds which paid off the note of S. J. Bearden and Florence Bearden to the bank wherein they had received the money to pay for the property, is exploded by the testimony of Sam Russell, who stated that he paid or gave S. J. Bearden a check with which to pay the note to the Farmerville Bank and it is established beyond any doubt that Mr. Russell was financilly able to do this and did so in order to save his father-in-law the expense of the payment of interest for this money, in view of the fact that he, said Mr. Russell, had certain sums which he was not using at the time and could spare with all ease.' (...