Orr v. Walker

• Decision Date: 16 June 1959
• Docket Number: No. 8826,8826
• Citation: 113 So.2d 485
• Parties: Enoch J. ORR, Plaintiff-Appellee, v. Lee WALKER et al., Defendants-Appellants.
• Court: Court of Appeal of Louisiana — District of US

Page 485

113 So.2d 485

Enoch J. ORR, Plaintiff-Appellee, v.Lee WALKER et al., Defendants-Appellants.

No. 8826.

Court of Appeal of Louisiana, Second Circuit.

June 16, 1959.

Johnson & Morelock, Shreveport, for appellants.

Roy M. Fish, Springhill, for appellee.

GLADNEY, Judge.

In this action plaintiff, Enoch J. Orr, seeks a judgment against his vendee, Lee Walker, and also against James Talley, declaring the nullity of a deed conveying to Walker title to certain described property, on the grounds of deception and fraud, and ordering its cancellation from the public records of Webster Parish.Alternatively plaintiff prays the defendant be ordered to reconvey the property to petitioner upon restitution of the purchase price with further prayer for damages in the sum of $1,250.In behalf of the defense there were filed, first, an exception of nonjoinder asserting that James Talley was a necessary party to the proceedings, and next, an exception of no right or cause of action predicated on grounds that: the petition did not show actionable fraud, that plaintiff was not entitled to annul or rescind the deed without returning the purchase price, and that damages and attorney's fees as declared upon by plaintiff were not recoverable.When plaintiff thereupon amended to name James Talley as a defendant, counsel for appellants further excepted, declaring upon a misjoinder of partiesdefendant.Other exceptions filed, but which now appear to have been abandoned, were directed at an 'improper accumulation of actions' and 'want of possession'.The answer to plaintiff's petition denied generally the averments of fraud.The trial judge overruled all exceptions save that portion of the exception of no cause or right of action directed against recovery of attorney's fees, which he sustained.The court after a trial on the merits of the case rendered judgment annulling the conveyance and declaring plaintiff to be the owner of the property described therein, conditioned upon return of the purchase price.The defendants have appealed.

In a prior suit styled Orr v. Talley, La.App., 84 So.2d 894, this court recognized the title of Orr to a small strip of land measuring 25 420 situated in or near the Town of Springhill, Webster Parish, Louisiana.The litigation arising from that suit occasioned bitterness between Orr and his neighbor, James Talley.The instant suit is concerned with the same strip of land, and was filed with allegations referring to the prior proceedings.The petition alleged Walker secured title to the property by means of false representations and fraud, except for which plaintiff would not have parted with his property.It is averred the defendant, Walker, knew the plaintiff would under no circumstances convey the property to James Talley and his wife, nor make any conveyance which would inure to their benefit; that with such knowledge Walker approached plaintiff and proposed to purchase the property, representing that he had obtained a deed from Talley for the latter's land adjoining that herein involved, which deed he exhibited to plaintiff, knowing that it was not bona fide and falsely declaring he would occupy the premises as his home within a few days; that based on these representations, plaintiff executed a deed to the defendant Walker and the latter recorded the same, but failed to file the deed from Talley.It was further alleged the defendant and James Talley work together and are friends, and that Talley prevailed upon Walker to practice the above artifice for the purpose of securing title to the property for Talley.Through a supplemental petitionplaintiff further alleged that subsequent to the filing of the original petition, Talley had taken possession of the property which Orr had conveyed to Walker.

When this case was first considered by this courtwe were of the opinion a party without a pecuniary interest had no judicial standing to bring such an action, and, accordingly, the defendants' exception of no cause or right of action was sustained.La.App., 104 So.2d 226.We did not pass on the other exceptions raised on the appeal, nor the merits of the case.The Supreme Court granted a writ of certiorari, disagreed with and reversed our decision on the exception of no cause or right of action, and remanded the case for our further consideration of the remaining exceptions and the merits.236 La. 740, 109 So.2d 77, 80.

After referring to the provisions of LSA-C.C. art. 1847(2), (7), and (9), the Supreme Court declared:

'Under the above clear and specific codal provisions a person may have his contract annulled when it has been obtained through the practice of artifice by another designed to cause him inconvenience; the sustaining of a pecuniary loss is not essential.'

The opinion took notice of the following observation contained in our decision:

'As an...