Marchand v. Armstrong

• Decision Date: 13 December 1977
• Docket Number: No. 8664,8664
• Citation: 354 So.2d 581
• Parties: Gloria Delesdernier, wife of Paul MARCHAND v. George T. ARMSTRONG and Mark Delesdernier et al.
• Court: Court of Appeal of Louisiana — District of US

Page 581

354 So.2d 581

Gloria Delesdernier, wife of Paul MARCHAND v. George T. ARMSTRONG and Mark Delesdernier et al.

No. 8664.

Court of Appeal of Louisiana, Fourth Circuit.

Dec. 13, 1977.

Rehearings Denied Jan. 11, 1978.

Writs Denied Feb. 17, 1978.

Gloria D. Gerald, in pro. per.

E. Howard McCaleb, III, New Orleans, for plaintiff-appellant.

James E. Wright, Jr. and Milling, Benson, Woodward, Hillyer & Pierson, Charles A. Snyder, Kennedy J. Gilly, Jr., New Orleans, for George T. Armstrong.

Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Ernest A. Carrere, Jr., Lucius F. Suthon, New Orleans, for Mark Delesdernier.

Thomas J. Toranto, Jr., New Orleans, for Succession of Ira Delesdernier, Sr., Paul Delesdernier, and Gayle Keene Ralph.

King F. Nungesser, Jr., New Orleans, for Angie Neider Delesdernier.

Before GULOTTA, STOULIG and DUPLANTIER, JJ.

STOULIG, Judge.

Plaintiff, Gloria Delesdernier Gerald, has appealed a judgment dismissing on exceptions of "no cause and/or right of action" her suit asserting an heritable interest in three tracts of land in Plaquemines Parish. She attacks two links in the title of George T. Armstrong, the present record owner, claiming (1) the land first came into the Delesdernier family through simulated sales by her grandfather to two uncles and an aunt; and (2) a later transfer by these same collaterals to Armstrong is a nullity because the signatures of two of the vendors were forged with Armstrong's knowledge.

Gloria Gerald is the grandchild of Julia Loga Delesdernier and George W. Delesdernier and is their forced heir through representation of her father Chester O. Delesdernier, one of the children of George W. and Julia who predeceased both his parents. In addition she is a collateral heir of George O. Delesdernier (her uncle) who died intestate without forced heirs. Her proportionate interest in each succession is not germane to our review. ¹

We preface our discussion of the issue with a restatement of the general rule that allegations of the petition are accepted as true for the purpose of weighing the validity of an exception of no cause of action. Documents incorporated in the petition by reference may be considered; however, evidence is inadmissible to controvert any assertions. C.C.P. art. 931; Babineaux v. Pernie-Bailey Drilling Co., 261 La. 1080, 262 So.2d 328 (1972); American Creosote Company v. Springer, 257 La. 116, 241 So.2d 510 (1970); Leidenheimer v. Schutten, 194 So. 32 (La.1940).

Plaintiff attacks as nullities the following acts registered in the conveyance office of Plaquemines Parish:

Sale by Albert W. Newlin, administrator of the Succession of Robert M. White, to Mark Delesdernier before Harold J. Rayl, late Notary, dated August 24, 1931 and registered in C.O.B. 72, Folio 114.

Sale by Albert W. Newlin, administrator of the Succession of Robert M. White, to Mark, George O. and Shirley I. Delesdernier before Harold J. Rayl, late Notary, dated October 29, 1931 and registered in C.O.B. 72, Folio 106.

Sale by Albert W. Newlin, administrator of the Succession of Robert M. White, to Mark, George O. and Shirley I. Delesdernier before Harold J. Rayl, late Notary, dated November 14, 1931 and registered in C.O.B. 72, Folio 110.

Sale of property by Mark Delesdernier, Shirley Delesdernier Koehl, and George O. Delesdernier to George T. Armstrong, before Frank J. Lobrano, Clerk of Court and ex-officio Notary Public, on October 14, 1933 and registered in C.O.B. 74, Folio 511.

The petition avers the first three sales are simulated transfers by George W. Delesdernier to three of his children in that it was George W. who bid for the properties at public auction and paid the purchase price with funds belonging to the community of acquets and gains existing between him and Julia Loga. Gloria avers the designation of George W. as the agent for the three vendees in the respective acts is a sham.

As a general rule, a forced heir is barred from attacking transfers by his ancestors in authentic form by parol evidence. See Scurto v. LeBlanc, 191 La. 136, 184 So. 567 (1938) and Eberle v. Eberle, 161 La. 313, 108 So. 549 (1926), for cases discussing this rule and the exceptions thereto.

Plaintiff alleges two irregularities in the acts attacked as simulated sales that she contends destroys their statuses as authentic acts, namely: (1) the mandates for George W. Delesdernier to act for his various children are not in writing and are not made part of the acts; and (2) the proces verbal of the auction sale recites George W. Delesdernier is the purchaser without stating he was bidding in an agency capacity.

C.C. arts. 2996 and 2997 stipulate a power of attorney to buy or sell real property must be express; however, if the recited agency in a deed is not evidenced by a written mandate, the transaction is not an absolute nullity that may be voided by a third party attack. Rather, it is voidable by one of the parties to the act. Once the Delesdernier vendees sold to Armstrong they ratified the agency of their father and foreclosed any future attack on the validity of the mandate. Bolding v. Eason Oil Company, 178 So.2d 246 (La.1965).

Nor is the alleged conflict between the proces verbal and the authentic act a basis for nullifying the sale. Plaintiff suggests an unrecorded proces verbal is the contract of sale between the estate of White and George W. Delesdernier, rather than the authentic acts later passed to convey the titles on which George W. bid successfully. She relies on C.C. art. 2623, which states:

"The adjudication made and recorded by the sheriff, auctioneer or representative of the succession, is a complete title to the purchaser, and needs not be followed by an act passed before a notary." (Emphasis added.)

The article does not apply to this case because the proces verbals upon which plaintiff rests her claim that George W. Delesdernier was the actual purchaser were not recorded.

With respect to the White sales, George T. Armstrong is an innocent third party protected by the law of public registry. See McDuffie v. Walker, 125 La. 152, 51 So. 100 (1909); R.S. 9:2721. But even if the unrecorded proces verbals were admissible and the reference therein to George W. Delesdernier were viewed in the light most favorable to plaintiff, the conflict between the authentic acts and the proces verbals would be resolved in favor of the recitations contained in those notarial acts. Carroll v. Scheen, 34 La.Ann. 423 (1882); Heirs of Nesom v. Weis, 34 La.Ann. 1004 (1882); McCall v. Irion, 41 La.Ann. 1126, 6 So. 845 (1889); and Hughes v. Edson, 129 La. 866, 57 So. 154 (1911).

We conclude, as did the trial court, that plaintiff's petition attacking the three White sales as simulations states no cause of action. ²

However, with respect to the assertions that the 1933 Armstrong acquisition is a nullity because two of the vendors' signatures were forged, plaintiff has stated a cause of action. Defendants argue to support their exceptions that Gloria is estopped from attacking this act because the uncle through whose succession she asserts this claim subsequently ratified the 1933 transfer in other written transactions. And further that in accepting his succession unconditionally, Gloria could not repudiate any agreements made by the uncle through whom she claims title. (See C.C. art. 1013.)

To support their position, defendants introduced numerous exhibits that are not incorporated by reference in plaintiff's pleadings. Defendants suggest we treat the exception leveled at the 1933 sale as one of no right of action. It is not. It is properly an exception of no cause of action. The exception of no right of action questions the capacity of the plaintiff to sue while no cause of action tests whether the pleadings and exhibits, if proved, afford a remedy at law. Outdoor Electric Advertising v. Saurage, 207 La. 344, 21 So.2d 375 (1945). Therefore, the exhibits introduced by defendant cannot be considered in passing on the exception of no cause of action. Soniat v. White, 146 La. 450, 96 So. 19 (1923).

Originally, the court referred the exceptions of no cause and no right of action to the merits; however, he rescinded this ruling and set the exceptions for argument after plaintiff prayed for a jury trial. Throughout argument on the exceptions, counsel for plaintiff repeatedly objected to admissibility of various documents. Defendants argue the documents were admitted without objection and accordingly expand the pleadings to incorporate them so that the Armstrong exhibits may be considered in deciding the exception of no cause of action.

In Williams v. Marionneaux, 240 La. 713, 124 So.2d 919 (1960), the Supreme Court in a footnote stated evidence admitted without objection enlarged the pleadings and might be considered in a no cause of action ruling as well as in a trial on the merits. At issue there was whether a release attached to a third party pleading could be considered in an exception of no cause of action when it was admitted without objection. In Williams the release was also cognizable because it was offered in support of an exception of res judicata. In this case objections were urged but even if they had not been, we would not extend the Williams rule to permit defendant to try via exception what C.C.P. art. 1005 requires pleaded as an affirmative defense.

Because the petition alleges a forgery, the rule that an authentic act is full proof of the agreement is inapplicable for the purpose of deciding this exception. C.C. art. 2236. An exception of no right of action based on plaintiff's want of interest is not available to defendant merely because he may have a valid defense. The various arguments of estoppel are affirmative defenses which must be raised and proved at a trial on the merits. (C.C.P. art. 1005.)

Intervening in the claim urged by Gloria are Angie Neider Delesdernier, Widow of Chester O. Delesdernier; Paul Delesdernier; Succession of Ira...