Quiett v. Moore's Estate

• Decision Date: 04 September 1979
• Docket Number: No. 63993,63993
• Parties: Samuel QUIETT v. ESTATE OF James MOORE.
• Court: Louisiana Supreme Court

Page 362

378 So.2d 362

Samuel QUIETT v. ESTATE OF James MOORE.

No. 63993.

Supreme Court of Louisiana.

Sept. 4, 1979.

On Rehearing Dec. 13, 1979.

Dissenting Opinion Jan. 4, 1980.

Martin C. Schroeder, Jr., Howell, Schroeder & Cutshaw, Ltd., Baton Rouge, for defendants-applicants.

Albert J. Lord, Bankston & Lord, Zachary, for plaintiff-respondent.

SUMMERS, Chief Justice.

James Moore acquired a lot of ground in the town of Zachary, Louisiana, on June 15, 1959. On July 30, 1962 he executed a promissory note secured by a mortgage affecting this property, in which he confessed judgment on the note, and agreed that if the note was not paid according to its terms the property might be immediately sold by executory process. The note, in favor of Samuel Quiett, was in the principal sum of $1,300, payable on or before three years. On November 11, 1970 Moore died intestate, possessed of the encumbered Zachary property.

Alleging that Moore had paid nothing on the note, that he was deceased and his heirs were unknown, Quiett filed a petition for executory process against the Estate of James Moore on February 1, 1971. He also prayed that an attorney at law be appointed to represent the estate. The District Judge appointed an attorney to represent the estate and ordered executory process to issue immediately, as prayed for and according to law. Pursuant to a writ of seizure and sale the Zachary property was sold at public sale without appraisal on March 17, 1971 to Quiett for $214.45.

Thereafter, on April 28, 1971, Lubertha Moore, wife of Daniel W. Mack, Sr., and Lucille Moore, wife of Edward Rogers, filed a petition in these proceedings for injunction. They alleged therein that they had opened the succession of James Moore and on March 3, 1971 were recognized as the heirs of James Moore and placed in possession of his estate as owners of an undivided one-half each of the Zachary property.

Their petition further alleged that they were unaware of the executory proceeding when the sale occurred; Quiett knew them to be the daughters of the deceased Moore; the attorney appointed to represent Moore's estate did not contact them; and the note sued on by Quiett was prescribed.

On these allegations they prayed for and obtained an order restraining Quiett from alienating or encumbering the property during the pendency of proceedings. They prayed further that the sale to Quiett be annulled, cancelled and set aside.

To this petition Quiett filed an exception of no right of action alleging that Lubertha Moore Mack and Lucille Moore Rogers had no right of action against him because they were not heirs of decedent James Moore.

At the trial of the exception of no right of action it was established by oral testimony that James Moore was legally married but once and then to a woman named Minnie Johnson, from whom he was later divorced. Thereafter he lived "common law" in the same house with Edith Goldman and her daughter, JoAnn Grayson. JoAnn Grayson testified that, as a result of sexual relations with James Moore, she gave birth to Lubertha and Lucille Moore and that James Moore reared these children as his own.

On the basis of these findings corroborated by several witnesses, and documents, the trial judge concluded on January 26, 1973 that Lubertha and Lucille were the illegitimate children of James Moore, informally acknowledged by him during his lifetime. Acknowledgement by the father could be shown by other ways than that provided by Article 203, the court held, on the authority of Succession of Corsey, 171 La. 663, 131 So. 841 (1930); Murdock v. Potter, 155 La. 145, 99 So. 18 (1924) and Taylor v. Allen, 151 La. 82, 91 So. 635 (1922). Thus, as acknowledged natural children, Lubertha and Lucille Moore were "called to the inheritance" of James Moore, their natural father, and therefore had a right of action to maintain their suit as proper parties in interest under the authority of the following language of Article 919 of the Civil Code:

"Natural children are called to the inheritance of their natural father, who has duly acknowledged them, when he has left no descendants nor ascendants, nor collateral relations, nor surviving wife, and to the exclusion only of the state."

In addition, the trial judge was of the opinion that the judgment of possession in favor of Lubertha and Lucille Moore bore a presumption of validity, and the law imposed the burden upon Quiett to refute that presumption. According to the trial judge, Quiett failed to meet this burden of proof. As a result the exception of no right of action was overruled.

Trial on the merits followed on September 27, 1977, during which Lucille testified that her natural father James Moore was survived by a sister named Lubertha Dawson. On the basis of this disclosure contradicting the evidence heard on the exception of no right of action and a finding that Lubertha and Lucille Moore were the natural children of James Moore, the trial judge held on the authority of Article 919 of the Civil Code that Lubertha and Lucille Moore were not called to the inheritance of their natural father to the exclusion of his sister Lubertha Dawson, a collateral relation. Having made these determinations he concluded that Lubertha and Lucille had no right to sue to annul the sale to Samuel Quiett. The petition to annul the sale was therefore dismissed.

On appeal to the First Circuit, Lubertha and Lucille argued that the trial court erred: 1) in allowing Quiett, a "stranger" to the estate of James Moore to attack the judgment of possession; and 2) in holding that they had no right of action.

In an unpublished opinion, relying on the authority of Taylor v. Williams, 162 La. 92, 110 So. 100 (1926), the Court of Appeal declared that a judgment of possession was not conclusive of heirship and may be opposed by one who is an heir or creditor. In the opinion of the Court of Appeal, Quiett was a creditor because he had an apparent title to the property acquired in the Sheriff's sale which conferred upon him the right to oppose the judgment of possession.

Basing its decision on Article 919 of the Civil Code, the Court of Appeal affirmed the judgment of the trial court, holding that Lubertha and Lucille Moore, as the natural children of James Moore could not inherit his estate to the exclusion of Moore's collateral relation Lubertha Dawson, unless Dawson renounced her brother's succession.

In an application for certiorari here Lubertha and Lucille Moore contested the validity of the Court of Appeal opinion and for the first time raised the issue of the constitutionality of Article 919 of the Civil Code. They invoked the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and Sections 2 and 3 of Article I of the Louisiana Constitution guaranteeing due process and equal protection of the laws and prohibiting discrimination against a person because of birth. No plea to that effect was filed in the District Court or the Court of Appeal and the issue was not considered there.

Inasmuch as we agree with the judgment of the Court of Appeal on its finding of fact and the application of the law to those facts, only the contention that Article 919 of the Civil Code is unconstitutional remains to be resolved.

It has long been the rule of law in this State that a presumption of constitutionality attaches to laws enacted by the legislature until the contrary is made to appear, and that as a general rule a litigant cannot raise the unconstitutionality of a statute unless its unconstitutionality is specially pleaded in the trial court and the grounds particularized. State of Louisiana v. Madere, 352 So.2d 666 (La.1977); Johnson v. Welsh, 334 So.2d 395 (La.1976); Becker v. Allstate Insurance Co., 307 So.2d 101 (La.1975); Summerell v. Phillips, 258 La. 587, 247 So.2d 542 (1971); Maher v. City of New Orleans, 256 La. 131, 235 So.2d 402 (1970); Creel v. Creel, 218 La. 382, 49 So.2d 617 (1950); City of New Orleans v. Plotkin, 205 La. 490, 17 So.2d 719 (1944); Ricks v. Close, 201 La. 242, 9 So.2d 534 (1942); Stovall v. City of Monroe, 199 La. 195, 5 So.2d 547 (1941); State v. Great Atlantic & Pacific Tea Co., 190 La. 925, 183 So. 219, cert. denied 305 U.S. 637, 59 S.Ct. 108, 83 L.Ed. 410 (1938); City of Shreveport v. Pedro, 170 La. 351, 127 So. 865 (1930).

For the reasons assigned the claim of unconstitutionality is denied and the judgment of the Court of Appeal is affirmed.

DIXON, J., concurs in the result.

CALOGERO, J., dissents.

TATE, J., dissents and assigns reasons.

DENNIS, J., dissents for the reasons assigned by TATE, J.

TATE, Justice, dissenting.

I respectfully dissent. The majority is in error in holding that the unconstitutionality of the statute upon which the defendant relies is not before us for decision. It further errs in failing to note two non-constitutional issues which should be resolved in the relators' favor, thus avoiding the fraudulent foreclosure sale of their father's home, worth $9,000, based on a note of $1,300 which was prescribed on its face.

(1)

The plurality opinion (one judge concurred in the result of affirmance for unspecified reason) holds that the relators may not raise the constitutionality of Civil Code Article 919 in this court, since they did not plead such unconstitutionality in the trial court. However, the trial court applied Article 919 on its own motion, as will be shown below, after the trial was concluded.

Under the Code of Civil Procedure and well-settled principle, the relators were not required to plead the unconstitutionality of a statute upon which a defense to their claim was based. This principle applies all the more in the present situation where the opponent did not himself plead the statute, which the trial court noticed on its own motion as allegedly applicable.

When "new matter" by way of defense is alleged in "exceptions, written motions, and answers," no replicatory pleadings are required of the plaintiff...