Latour v. Guillory

• Decision Date: 11 March 1912
• Docket Number: 18,695
• Citation: 130 La. 570,58 So. 341
• Court: Louisiana Supreme Court
• Parties: LATOUR v. GUILLORY et al

58 So. 341

130 La. 570

LATOUR v. GUILLORY et al

No. 18,695

Supreme Court of Louisiana

March 11, 1912

Rehearing Denied April 22, 1912.

Appeal from Sixteenth Judicial District Court, Parish of St. Landry B. H. Pavy, Judge.

Action by Dr. E. A. Latour against Oliviel E. Guillory and others. From a judgment for defendants, plaintiff appeals. Reversed and remanded.

Lewis &amp Lewis, for appellant.

Garland & Harry and Dudley Guilbeau, for appellees.

OPINION

BREAUX C. J.

On Motion to Dismiss the Appeal.

Appellee moves to dismiss the appeal.

The grounds of the motion are:

That the judge had no authority to grant the order of appeal. That the appeal bond was not received by the proper officer, the clerk, and that his deputy was without authority to receive and file the bond. That all the proceedings were had on and subsequent to January 4, 1911, after the parish of Evangeline had been created and her officers had taken charge of the affairs of the parish. That the court was opened in the parish of Evangeline on the 2d day of January, 1911.

There need be little said in deciding this motion.

The cause was legally brought in the parish of St. Landry. Nothing occurred after trial in that parish requiring the transfer of the case to the new parish of Evangeline. The court of original jurisdiction had jurisdiction to grant the order of appeal, and the clerk of that court had authority to receive the bond and return the record to this court.

The motion to dismiss is overruled.

On the Merits.

On the merits it appears that plaintiff, Latour, and defendant Guillory are brothers-in-law. They were on friendly terms until some months after defendant conceived the idea of shielding from the action of creditors the tracts of land described in plaintiff's petition.

The lands are within the limits of Ville Platte, a town in the parish of Evangeline, until recently within the limits of the parish of St. Landry.

Plaintiff is a physician who practices his profession in the parish of Vermilion, at some distance from his former home and the situs of the lands now in dispute. We infer from the pleadings that he had little time and less inclination to attend to his interest in these lands. He readily accepted the advice of his brother-in-law, and the first act of plaintiff was to donate to his sister (defendant's wife) the three tracts of land in question. He donated all his rights to the land. The condition was that his father was to have the usufruct of the property for his life. The donation was signed by the donor and two witnesses.

Below the signature the following is written:

"Sworn to and subscribed before me, the undersigned authority, on the day and date written."

And below these, the document was signed by the notary.

As it resulted in the end, it can scarcely be said that in effect the donation was onerous.

The husband of the donee, defendant Guillory, lost all confidence in this act of donation as a starting point to enable him to defeat creditors of plaintiff, in the interest, as he states, of the father of plaintiff, who was an elderly man and had no home save the home which he occupied on this land. Defendant then sought to obtain a sale direct; but this, plaintiff refused. Afterward, at the instance of defendant, plaintiff gave him a procuration authorizing him to sell and dispose of these lands.

Plaintiff appointed defendant O. E. Guillory his agent, authorizing him to sell or incumber the property described and pay debts assumed by Guillory for him.

After this power of attorney had been given, a counter letter was signed and placed in the possession of plaintiff by defendant. The counter letter is not dated. It states:

"We shall annul and furnish certificates of annulment in due time to Emil Latour of all judgments bearing against plaintiff on account of two notes he executed to Alexis Latour merged into a judgment."

In the event they failed in this, they were to cause to be resold for the interest of Latour, the plaintiff, half of the property which he (Latour) had given, quoting from the counter letter, "to my husband, O. E. Guillory."

This counter letter was written evidently to be signed by Mr. and Mrs. Guillory, and Mrs. Guillory, it was intended, doubtless, was the one to be bound by the counter letter; but O. E. Guillory, only, signed it.

On the 16th day of November, 1905, by virtue of the power of attorney above mentioned, O. E. Guillory, agent, sold the property to his brother-in-law, Alexander Miller, for the stated price in the deed of $ 3,000 cash.

Attacking these different acts, plaintiff begins by charging that defendant Guillory availed himself of the act of donation, not legal in form, as he contends, and also availed himself of the power of attorney to unlawfully deprive him of his property. Plaintiff avers particularly that he never intended to transfer the property, and that defendant took advantage of him.

In the year 1905, when the first acts were signed, it is said by defendants that the lands were of no great value, and their recovery would not have justified an expensive lawsuit. Since 1908, these lands have enhanced very much in value, from a few hundred dollars to about $ 25,000, it is said.

Plaintiff, wishing to re-enter into the possession of his asserted land, called upon defendant for a transfer back to him of all titles. The defendant refused, and it resulted in a breach of all friendly relations. This suit followed.

The first claim of importance secured by mortgage on plaintiff's property grows out of a judgment obtained years ago by E. Marquez & Co., which was duly recorded. This is the claim which gave concern to defendants; also, some concern to plaintiff. They sought to avoid payment of it by suits instituted for that purpose. In the end, Guillory himself became the owner of the judgment. Within the 10 years after its date, it was duly revived -- this was many years ago -- by the one who was at that time the owner of the judgment. In the year 1905, just before the 10 years had elapsed, it was again revived at the instance of a Mrs. Cole, transferee and owner, and again it was duly inscribed. In this last judgment of revival, it is stated as follows:

"That said judgment be revived and continue in force for ten years from the date of the last revival."

And, evidently by an oversight, it is added:

"From the date of the last revival on said judgment on May 20, 1895."

From this defendant will have it that the judgment was revived only for a short time, and not for a period of 10 years.

Instead of 1895, as stated in the judgment, it should have been 1905. It was evidently a slip of the pen, or owing to an oversight, that 1895 was made to take the place of 1905. This oversight is made to appear by the judgment itself, which states that the judgment is revived for 10 years -- of course, from its date. Moreover, the petition sufficiently explains the oversight and shows beyond question that it was intended to revive the judgment from the date of the judgment, and not from 1895. In consequence, the judgment bears against the property in question.

This judgment was sold to a Mr. Cole, the husband of the transferee before mentioned. The latter died owner of one-half of the property above referred to, which had passed out of the plaintiff, also leaving the Marquez judgment as a part of the assets of his succession. Both became the property of his widow, Mrs. Cole.

Plaintiff had remained the owner of the undivided half of the property. This one undivided half he sold to his father, Emil Latour, taking therefor the two notes of his father, representing the purchase price. In time these notes became subject to the plea of prescription. The defendant, who had charge of the property after 1905, advised that suit be brought to resolve the sale. It was brought in the name of the plaintiff against the father in resolution of the sale, thinking that thereby they would shake the confidence of the owner of the Marquez judgment, secured by mortgage, as before stated, to such an extent that he would be willing to sell it for a small amount. This action was resorted to, it was said, in order to enable them to buy the judgment and retain the home of Emil Latour, the father.

It is also stated that plaintiff refused to have anything to do with any steps to the end before mentioned; that he did not choose to expend any money on the advice of his brother-in-law, the defendant.

The defendant seems to attach some importance to the following testimony and seems to think that it gave him some right to the property in question:

This is an extract from the evidence of the brother of plaintiff, Arthur Latour:

"Q. What reply did Dr. Latour make to these different suggestions to him that he should interest himself in the matter?

"A. He always said he would not do anything with it.

"Q. Did he say why?

"A. Because he said he didn't think there could be anything done further. He called me off aside on the gallery of Austin Fontenot's office, telling me that Guillory must have been a fool to try and get him interested in that affair; that he didn't have any money to throw away on that property. That is the time he threw the records on the desk and called me off aside, and we could not get him interested at all."

We have not found in all of this anything in the nature of a title. Still, defendant seems to rest confidence upon this want of interest in the property manifested by plaintiff. In search of the title claimed by defendant to the property, we take up the act of donation. It was not in authentic form. As evidence of that fact, we insert the deed in extenso.

"Act of Donation.

"State of Louisiana, Parish of St. Landry.

"Know all men by these...