Nunez v. Bayhi

• Decision Date: 01 June 1900
• Docket Number: 13,394
• Citation: 28 So. 349,52 La.Ann. 1719
• Court: Louisiana Supreme Court
• Parties: NEMOURS H. NUNEZ v. JAMES BAYHI

28 So. 349

52 La.Ann. 1719

NEMOURS H. NUNEZ v. JAMES BAYHI

No. 13,394

Supreme Court of Louisiana

June 1, 1900

APPEAL from the Twenty-Second Judicial District, Parish of St Bernard -- Hingle, J.

John Dymond, Jr., for Plaintiff, Appellee.

A. E. &amp O. S. Livaudais, for Defendant and Intervenor, Appellants.

OPINION

MONROE J.

This is a petitory action, brought against James Bayhi, who is in possession, for the recovery of certain real estate, situated in the parish of St. Bernard, which the plaintiff claims to have purchased from Honore V. Bayhi, for $ 3,000 cash, by act, before Jas. D. St. Alexandre, Notary Public, of date May 19, 1899.

Defendant answers that he holds said property, as owner of one undivided half interest, and by the authority of Gustave Bayhi, his brother, who owns the other undivided half interest; that his brother and himself are the sole heirs of Honore V. Bayhi, who owned said property, and was in possession thereof at the time of his death; that the act of sale relied on by the plaintiff, if consented to by said Honore V. Bayhi at any time, was obtained from him, not upon May 19, 1899, but a few days before his death, when his mind was enfeebled by disease, and through fraud, error misrepresentation, and duress, and without consideration. The respondent then assumes the character of plaintiff in reconvention, and claims the value of certain movable property, said to have been taken possession of by plaintiff, together with damages alleged to have been sustained by him by reason of its removal, and he prays for judgment rejecting the plaintiff's demand, and decreeing the act of sale sued on to be null. Gustave Bayhi, intervening, alleges that he and James Bayhi, the defendant, are the sole children and heirs of Honore V. Bayhi; and that he is the administrator of the latter's estate, and his intervention contains, in other respects, substantially the same averments as are to be found in the answer of James Bayhi.

The evidence shows that Honore V. Bayhi, the father of the defendant and the intervenor, was nearly eighty years old at the time of his death; that some four or five years prior thereto he had married, as his third wife, a widow lady, with three children, to whom he made an ante nuptial donation of one-third of his estate, or rather of an undivided third interest in the property here claimed, which was his home, and, with the exception of some little movable property, constituted his entire estate; that several months before his death, he had been stricken with a mortal illness, as the result of which he grew more and more feeble, so that he became, successively, bed-ridden, childish, and moribund.

There is a serious question as to his mental condition upon May 19 1899, the day upon which the plaintiff claims that he executed the act of sale sued on, but there is none as to his physical condition, for, whether it was done on May 19th or June 7th, it is shown that he was confined to his bed, and that his wife supported his arm when he signed said act; and there is no question as to either his mental or physical condition on the seventh of June, the day upon which the defendants allege that said act was executed, since it is practically admitted that he was then, from either point of view, incapable of executing such an act. Another question, which the evidence leaves in grave doubt, is whether any such sum as three thousand dollars, for which the property is said to have been sold, was ever, in reality, paid; the most that is shown upon this subject being that the vendee handed, or counted, to the vendor, "some money", which immediately passed into the hands of his wife, but, how much there was, no one has undertaken to say. The notary says: "I did not see the money counted out". Albert Nunez, one of the witnesses to the act, testifies that he saw the vendee counting some money, but does not know how much he counted. Serpas, the other witness, says: "They kind of raised him up, and held his arm. Mrs. Bayhi helped him upon the pillow behind him, to prop him up, and held his arm, when he signed ...