Phillips v. Nereaux
| Decision Date | 13 February 1978 |
| Docket Number | No. 11739,11739 |
| Citation | 357 So.2d 813 |
| Parties | Myrtle F. PHILLIPS, Individually and as Administratrix of the Succession of Griffin Phillips v. Louis NEREAUX, Jr., Irene Phillips Nereaux, and Carolyn June Phillips Hayes. |
| Court | Court of Appeal of Louisiana — District of US |
Samuel C. Cashio, Charles R. Browning, Maringouin, for appellant-defendants, Louis Nereaux, Jr., Irene Phillips Nereaux and Carolyn June Phillips Hayes.
Patrick W. Pendley of Freeman & Pendley, Plaquemine, for appellee-plaintiff, Myrtle F. Phillips, Individually and as Administratrix of the Succession of Griffin Phillips.
Before LOTTINGER, EDWARDS and PONDER, JJ.
This is a suit by Myrtle F. Phillips, widow of Griffin Phillips, individually and as administratrix of the Succession of Griffin Phillips, against Louis Nereaux, Jr., Irene Phillips Nereaux and Carolyn June Phillips Hayes, to have certain sales of land and cattle declared null and void. The defendants appealed the decision of the Trial Court, and the plaintiff has answered the appeal.
Mr. Griffin Phillips was married only once in 1944 to Myrtle F. Phillips and of that marriage two children were born, Irene and Carolyn June. Myrtle Phillips was married twice before her marriage to Mr. Phillips and had three children from those prior marriages. Mr. Phillips was a farmer and raised cattle most of his life. He was in both World Wars and began receiving a veteran's disability pension in 1958.
In 1949, Mr. Phillips bought at a sheriff's sale approximately 300 acres near Rosedale, Louisiana. The deed failed to contain the double declaration; however, the Trial Judge concluded that the separate funds of Mr. Phillips were used to purchase the property.
In 1963 Irene married Louis Nereaux, Jr. In December of 1964 Mr. Griffin Phillips sold to Louis and Irene 3 acres for a cash consideration of $1,500.00 which was never monetarily paid. Louis and Mr. Phillips subsequently built the Nereaux home on that property. The consideration for the property according to the Nereauxs is the effort by Louis to aid Mr. Phillips both before and after his marriage to Irene in the operation of the farm. Appellee concedes the validity of this sale; thus, it is no longer at issue before this Court.
In 1967, for various reasons, Mr. Phillips executed a written lease to Louis Nereaux Jr. for the property and 70 head of cattle for which $1,300.00 per year rental was charged. It is alleged by the appellee that these were sham leases in order to allow Mr. Griffin Phillips to maintain his veteran's disability pension. On the other hand, the appellants contend that these were valid leases and that Louis took over running the operations of the farm and the cattle from 1967 on. The written leases executed on a yearly basis expired in 1972. Louis claims to have had an oral lease with Mr. Phillips from 1973 to 1974. In January of 1974 Louis claims to have purchased the cattle from Mr. Phillips for $15,000.00. This amount was obtained by Louis Nereaux, Jr. through a loan from the Bank of Maringouin which issued two checks, one for $15,000.00 to Mr. Griffin Phillips and one for $2,000.00 to Louis Nereaux, Jr. The loan was secured by a chattel mortgage on the cattle. At this time the ownership of the cattle is moot because of a rescission of the sale between Louis Nereaux and Griffin Phillips and a return of the cattle to the estate of Griffin Phillips. The controversy remaining is who is entitled to the calf crop, how many were produced, and for what years.
On February 9, 1973, Mr. Phillips executed two acts of sale dividing the Rosedale property in half between his two daughters for a consideration of $15,000.00 each, to be paid over a ten year period based on ten $1,500.00 notes, less five acres situated around the home of Griffin and Myrtle Phillips. The first draft of this sale was drawn up on September 5, 1972 and included a place for Mrs. Phillips to sign. She at that time refused to sign said draft and subsequently left the marital domicile. The sales were executed on February 9, 1973, and were recorded on February 20, 1973. During the interim Mrs. Phillips recorded a declaration of homestead on February 16, 1973 which included the property which was allegedly sold on February 9th. Mrs. Phillips returned home and remained with Mr. Phillips until his death.
On August 7, 1973, Mr. Clifford Redell contacted Mr. Griffin Phillips concerning a listing of the property for sale. Mr. Phillips signed a listing agreement which stated that the property was owned by him, was not rented, and was to be sold for $1,000.00 per acre. Mrs. Phillips refused to sign the listing agreement but stated that she would agree to selling the property if she received half of the cash. According to the appellants they had given permission for their father to list the property in order to maintain harmony in the family. The agreement was withdrawn on August 10, 1973.
On August 29, 1974, Mr. Griffin Phillips died intestate. Immediately following his death discussions ensued concerning the disposal of the cattle and the property. Mrs. Phillips was informed by Mr. Nereaux that he was owner of the cattle and offered her the $15,000.00 which he claims to have been holding for Mr. Phillips.
She refused to accept the amount that he offered and she claimed the ownership of the cattle. It was not until the opening of the succession that Mrs. Phillips claims that she learned of the February 9, 1973 sale of the property to her daughters. From October of 1974 to January of 1975 Mrs. Phillips along with her sons, son-in-law and neighbors maintained the operation of the farm. It is questionable whether Mrs. Phillips ordered Louis Nereaux off of the property or whether he merely stayed away until January 31, 1975 when he was appointed custodian of the herd by the trial court.
The Trial Judge found the status of the property to be community in that the sheriff's sale contained no double declaration. He found that the sale of the 3 acres for the homesite of the Nereauxs was valid under LSA-C.C. art. 2404 which allows the husband to gratuitously donate immovables for the establishment of the children of the marriage. The second sales of the property on February 9, 1973 were held to be simulated sales in that no consideration was paid nor was there any intention to pay. It was found, however, to be a valid donation inter-vivos of the husband's half interest in the property. The widow would receive her half of the community property which would include the area denoted in the Declaration of Homestead. The court held the leases valid from 1967 through 1973, giving title to all of the calf crop to Louis Nereaux except for the years 1974 and 1975. The calf crop estimated for those years was 50 calves per year which was owed to the estate by Mr. Louis Nereaux, Jr. Finally, the court found that the widow had no usufruct over the husband's share of the community property since he did not die possessed of the property; therefore, Irene Phillips Nereaux and Carolyn June Phillips Hayes own half of the property in full ownership.
The appellants assign nine specifications of error to wit:
(1) The Trial Judge erred in holding that the immovable property which forms the subject of this lawsuit was the property of the community of acquets and gains existing between Griffin Phillips and the Plaintiff, Myrtle F. Phillips.
(2) The Trial Judge erred in holding that the Acts of Sale with Mortgage dated February 9, 1973, to Irene Phillips Nereaux and Carolyn June Phillips Hayes were simulated sales.
(3) The Trial Judge erred in ordering the return to Myrtle F. Phillips of a one-half (1/2) interest in the Northern tract of land sold to Carolyn June Phillips Hayes and a one-half (1/2) interest in the Southern tract of land sold to Irene Phillips Nereaux.
(4) The Trial Judge erred in ordering the return of the calf crops for the years 1974 and 1975, or the value thereof, to the estate of Griffin Phillips.
(5) The Trial Judge erred in holding that Mrs. Myrtle F. Phillips was entitled to twenty (20) acres which surrounded the actual homesite as a result of the declaration of homestead which she filed.
(6) The Trial Judge erred in holding that the fees of Kermit Williams and J. Gerald Dupont in the amount of $1,875.00 and $1,750.00, respectfully, be taxed as costs of court.
(7) The Trial Judge erred in casting the defendants, jointly, for one-half (1/2) of the court costs.
(8) The Trial Judge erred in admitting hearsay testimony concerning statements allegedly made by the decedent, Griffin Phillips.
(9) The Trial Judge erred in holding that Griffin Phillips transferred the property to his daughters in fraud of the Plaintiff's rights under Civil Code Article 2404.
The appellee answered the appeal alleging aggrievement from the judgment in that the Trial Judge failed to return all the cattle, all the farm equipment purchased from 1967 to 1974, and all the property to the estate of Griffin Phillips. Finally, appellee protests the assessment condemning her to pay half of the court costs. The aggrievements of the appellee will be encompassed in our discussion of the errors assigned by the appellant.
The Trial Judge concluded that even though Griffin Phillips had used separate funds to acquire the Rosedale property, such evidence could not be used to rebut the presumption that the property was a part of the community of acquets and gains in the absence of the double declaration in the sheriff's sale.
Appellants argue that this result is not mandated by the Civil Code.
LSA-C.C. art. 2402 generally provides that the "community consists * * * of the estate which they (husband and wife) may acquire during the marriage, * * * by purchase, * * * even although the purchase be only in the name of one of the two and not of both, because in that case the period of time when the purchase is made is alone attended to, and not the...
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