Loranger v. Citizens' Nat. Bank of Hammond

• Decision Date: 03 January 1927
• Docket Number: 26291
• Citation: 111 So. 418,162 La. 1054
• Parties: LORANGER v. CITIZENS' NAT. BANK OF HAMMOND
• Court: Louisiana Supreme Court

111 So. 418

162 La. 1054

LORANGER v. CITIZENS' NAT. BANK OF HAMMOND

No. 26291

Supreme Court of Louisiana

January 3, 1927

Rehearing Denied Jan 31, 1927

Appeal from Twenty Fifth Judicial District Court, Parish of Tangipahoa; Robert S. Ellis, Judge.

Suit by Mrs. Minnie H. Loranger against the Citizens' National Bank of Hammond to enjoin the sale of property seized by defendant under a writ of fieri facias. Judgment for defendant, dissolving the writ of injunction, and plaintiff appeals.

Affirmed.

Purser & Magruder and Shelby S. Reid, all of Amite, for appellant.

Kemp &amp Buck, of Amite, for appellee.

LAND J. ROGERS, J., concurs in the decree. O'NIELL, C. J., dissents.

OPINION

LAND, J.

The defendant bank, as a judgment creditor of Arthur Loranger and of H. R. Loranger, seized under writ of fieri facias and advertised for sale a parcel of ground 100x300 feet in square 124 of C. E. Cate's addition to the city of Hammond, in the parish of Tangipahoa. The plaintiff, the wife of Arthur Loranger, one of the judgment debtors, enjoined the sale on the ground that she is the owner of the property seized. Judgment was rendered in favor of defendant bank in the court below, decreeing Arthur Loranger to be the lawful owner of the property in question and dissolving the writ of injunction, with statutory damages against plaintiff and the surety on her injunction bond. Plaintiff has appealed.

1. Defendant bank obtained its judgment on November 21, 1922, and filed same for registry on the same date. The judgment was duly recorded in the mortgage records of Tangipahoa parish December 17, 1922.

At the date of the recordation of the judgment, there appeared upon the public records of Tangipahoa parish an authentic act of sale of date April 4, 1921, evidencing a conveyance by Arthur Loranger to Mrs. Minnie H. Loranger, his wife, of the property seized herein, for a cash consideration of $ 2,000. The act of sale was duly recorded April 6, 1921.

On the trial of the case the plaintiff offered to introduce in evidence the depositions of her husband and of herself and the testimony of the notary to prove that Arthur Loranger and his wife had declared to the notary and the witnesses, at the time of the passage of the act of sale, that he desired to make a donation inter vivos to his wife, but, as the notary had no printed form for a donation, that he used, in lieu thereof, an ordinary form for a cash act of sale.

The defendant objected to the introduction of the authentic act of sale and to all testimony in connection therewith on the following grounds:

(1) That said pretended sale is null and void and can have no legal effect for the reason that it purports to be a sale between husband and wife, which is prohibited under the laws of the state of Louisiana.

(2) That parol evidence is inadmissible to vary, alter, contradict, or enlarge the terms of a written instrument.

(3) That said pretended deed is the best evidence of the intention of the parties.

(4) That the said sale being a nullity, and defendant bank having become vested in certain rights under its judgment, the plaintiff and her husband are estopped from asserting ownership in her of said property.

(5) That plaintiff and her husband, defendant's debtor, cannot be heard to alter, modify, or change the said pretended deed, or any other part of the conveyance records, to the prejudice of defendant's judicial mortgage.

The objections of defendant to the admissibility of parol evidence were sustained by the trial judge. Plaintiff contends that this ruling is erroneous, as the party to a contract may show the existence of a true and sufficient consideration, if the cause expressed as the consideration should be one that does not exist. R. C. C. art. 1900. Plaintiff also contends that the consideration mentioned in article 1900 of the Civil Code means such consideration as was contemplated by the parties at the time of the execution of the act, citing Chaffe v. Scheen, 34 La.Ann. 684; Dietzgen v. Kokosky, 113 La. 449, 37 So. 24, 66 L. R. A. 503; Phelan v. Wilson, 114 La. 813, 38 So. 570; Landry v. Landry, 40 La.Ann. 229, 3 So. 728; Brown v. Brown, 30 La.Ann. 966; Foster v. Wise, 27 La.Ann. 538; Goodloe v. Hart, 2 La. 446; Dickson v. Ford, 38 La.Ann. 736; Brewer v. New Orleans Land Co., 154 La. 446, 454, 97 So. 605; Buford v. Collins, 41 La.Ann. 642, 6 So. 219.

Article 1900 of the Civil Code declares that:

"If the cause expressed in the consideration should be one that does not exist, yet the contract cannot be invalidated, if the party can show the existence of a true and sufficient consideration."

We do not find it necessary to review all of the objections urged by defendant to the admissibility of parol evidence to prove that the recorded authentic act of sale from the husband to the wife is a donation inter vivos and not a sale. We shall consider, first, the fifth or last objection made to the offer of such evidence, as affecting the judicial mortgage of defendant bank, a third person.

In the case of Preslar & Tier v. Walker, 116 La. 661, 665, 40 So. 1033, the court said:

"But, above all, the defendant cannot be heard to successfully contradict the recitals of the deed in order that she may be able to prove that between her and a third person it was a donation. She did not in any way attack the deed made by her father, Wasson, to her husband Lee Walker; she never made the least attempt to reform it.

"At the trial the deed was offered in evidence by her together with oral testimony contradicting it in essential particulars. This cannot be done. Recorded acts have a legal effect. They cannot thus be neutralized at convenience by a person who seeks to withdraw the property from the ownership of the person in whom it appears of record.

"True there are decisions (one of the number cited above) in which it was held that testimony is admissible to show the real consideration of the act, but this rule has never been extended so as to enable the parties to prove, as against third persons, that the recitals of a deed of sale meant a donation." C. C. art. 2276; Succession of Guillory, 29 La.Ann. 495; Chaffe v. Ludeling, 34 La.Ann. 962, 967.

In Rocques v. Freeman, 125 La. 60, 66, 51 So. 68, it is said that:

"The act which is sought to be annulled in this case as a donation does not appear on its face to possess that character. On its face, it is a partition between Charles F. Metoyer and his sister. It was no more calculated to put innocent third persons on their guard against defects in the title than would have been a donation in...