Monk v. Monk

• Decision Date: 06 June 1962
• Docket Number: No. 45930,45930
• Citation: 144 So.2d 384,243 La. 429
• Parties: Fred MONK v. Mrs. Etta Bell MONK.
• Court: Louisiana Supreme Court

Page 384

144 So.2d 384

243 La. 429

Fred MONK v. Mrs. Etta Bell MONK.

No. 45930.

Supreme Court of Louisiana.

June 6, 1962.

Rehearing Denied Oct. 3, 1962.

Hayes, Harkey & Smith, Monroe, for plaintiff-appellee-relator.

Jones, Blackwell, Chambliss & Hobbs, West Monroe, for defendant-appellant-respondent.

FOURNET, Chief Justice.

Fred Monk instituted this suit in 1958 against his former wife, Etta Bell Monk, ¹ seeking to be declared the owner of an undivided half interest in a thirty-acre tract of land located in Ouachita Parish ² acquired in the wife's name during the existence of the community of acquests and gains established by the marriage of the parties in 1924, and dissolved in 1939 by their judicial separation. ³ The matter is now before us to review the judgment of the appellate court reversing the lower court judgment favorable to the plaintiff and dismissing his suit on defendant's plea of estoppel. See, Monk v. Costin, La.App., 134 So.2d 598.

The record discloses that during the existence of the community of acquets and gains between the parties, plaintiff's mother, Mrs. Lorinda Monk, on September 28, 1928, a few days prior to her death, executed a deed by authentic act whereby, for a recited consideration of $300 in cash, she conveyed the property in question to her then daughter-in-law. This deed contains the stipulation that the daughter-in-law, Mrs. Etta Monk, was 'appearing and purchasing the * * * property with her own separate paraphernal funds over which her said husband had no control,' as well as the further stipulation to the effect it was understood the property was not only purchased by Mrs. Monk with her separate funds, but that it would, thenceforth, 'be the separate and paraphernal property of the said Mrs. Etta Monk and not the property of the community existing between her and her said husband.'

The evidence establishes the fact that while plaintiff did not himself sign the act, either as the husband acknowledging the verity of its contents or in any other capacity whatsoever, he was instrumental in procuring its preparation, execution, and recordation by causing it to be drawn; engaging the services of a notary public to officiate at its execution; which took place in his presence at his mother's home; and having it recorded the following day. The record also shows a small house was subsequently built on the property by the husband and that it was used by him, his wife, and their children as the matrimonial domicile until the legal separation in 1939.

The defendant claims that under the circumstances above outlined, and the fact plaintiff claimed no interest in the property from the day the deed was executed until the day this suit was filed--a period of almost 30 years--and signed as a witness a mineral lease executed by her by authentic act, he is estopped from denying she acquired the property as stated in the deed, i.e., as her paraphernal property. In addition, she has pleaded the exceptions of no cause and no right of action predicated on the same contention, prescription of ten years acquirenda causa under Articles 3474, 3478--3482, and 3451 of the Revised Civil Code; and the ten year liberative prescription under Article 2221 of the Revised Civil Code.

It has long and firmly been established under the jurisprudence of this court that a husband who has been a party to an act of purchase, in which it is declared the consideration belonged to the wife in her paraphernality and the property is to be such, Either by signing the deed or as a witness thereto, cannot, thereafter, be heard to contradict it. Rousseau v. Rousseau, 209 La. 428, 24 So.2d 676; Pfister v. Casso, 161 La. 940, 109 So. 770; Tonglet v. Chopin, 155 La. 752, 99 So. 587; Fireman's Ins. Co. v. Hava, 140 La. 638, 73 So. 708; Karcher v. Karcher, 138 La. 288, 70 So. 228; Maguire v. Maguire, 40 La.Ann. 579, 4 So. 492. This is known in law as estoppel by deed, and is based on the public policy of this state in order that there may be some security of titles. However, under the facts of this case this rule has no application, and a review of the authorities relied on by counsel for defendant are inapplicable from a legal or factual standpoint.

The fact plaintiff signed a mineral lease executed by the defendant on March 24, 1937, does not aid the defendant's cause under the above jurisprudence, and for the further fact that this lease was executed during the existence of the community. Finally, there is no mention whatsoever in the lease that the property involved was defendant's separate property; indeed, the lease contains a provision to the effect that if she owned 'a less interest' than the entire undivided fee simple estate, then the royalties and rentals provided for would be paid her only in proportion to that interest.

Significantly, several months later, on November 15, 1937, and also during the existence of the community, Mrs. Monk, Jointly with Mr. Monk, conveyed a mineral interest in the land to a Dr. Edgar B. Hands, they purportedly appearing therein as the owners of this property and warranting their title. This evidences the fact Mr. Monk was, at that time, not only asserting his ownership of an interest therein, but also that Mrs. Monk recognized his right to that interest. It is further significant that on April 7, 1945--after the legal separation and divorce and long prior to the expiration of thirty years--the plaintiff, in his own name, granted a mineral lease affecting the property to The California Company, and, on May 3, 1958, granted another mineral lease affecting the same property to the Southwest Natural Production Company. This reflects the plaintiff has, consistently from November 15, 1937, during the existence of the community, and thereafter, until this suit was filed on September 17, 1958, treated this property as property in which he owned an interest.

Inasmuch, therefore, as the plaintiff did not sign the deed of 1928 in any capacity whatsoever, and for the further reason that defendant failed to allege and prove she was, by acts or inducements of either omission or commission, influenced to act to her harm or prejudice, or that she has been made to rely to her detriment or change her position in any way by any misrepresentations made by the plaintiff--essential and sacramental elements for the maintenance of such a plea--defendant's plea of estoppel, as well as the exceptions of no right and no cause of action predicated on the same argument, should have been, and are, hereby, overruled.

With respect to the purported long silence of the plaintiff and his failure to sooner assert in judicial proceedings his alleged interest in this property, the facts just set out not only refute this, but 'It has long been a fundamental principle deeply embedded in our law and jurisprudence that title to realty cannot be established by waiver or by estoppel; for one can never be divested of his title to realty except in the manner prescribed by law.' such as by deed, inheritance, or prescription. Koerber v. City of New Orleans, 228 La. 903, 84 So.2d 454. See, also, Gibson v. Pickens, 187 La. 860, 175 So. 600; Nielson v. Haas, La.App., 192 So. 716; Snelling v. Adair, 196 La. 624, 199 So. 782; Waterman v. Tidewater Associated Oil Company, 213 La. 588, 35 So.2d 225; and Harrell v. Stumberg, 220 La. 811, 57 So.2d 692.

In order to establish the paraphernality of property acquired by deed during the community in her own name, a wife must prove '(1) the paraphernality of the funds used for the purchase; (2) her individual administration of the property; and (3) that the money was invested by her. In the event the purchase is made on credit, she has the further burden of establishing (4) that she not only made the down payment out of her separate and paraphernal funds, but that she had sufficient separate revenues and funds to make the purchase with reasonable certainty of being able to meet the deferred payments.' Betz v. Riviere, 211 La. 43, 29 So.2d 465. See, also, Succession of Manning, 150 La. 1008, 91 So. 435; Houghton v. Hall, 177 La. 237, 148 So. 37; ...