Rider v. Fontenot
| Decision Date | 30 January 1985 |
| Docket Number | No. 84-48,84-48 |
| Citation | 463 So.2d 951 |
| Parties | Michael RIDER, et al., Plaintiffs-Appellants, v. Susan Rider FONTENOT, et al., Defendants-Appellees. |
| Court | Court of Appeal of Louisiana — District of US |
Clyde Fontenot, Ville Platte, for plaintiffs-appellants.
J. Jake Fontenot and Thomas F. Fuselier, Mamou, for defendants-appellees.
Before GUIDRY, FORET and LABORDE, JJ.
This is an appeal from a summary judgment dismissing plaintiffs' suit. We reverse and remand.
Plaintiffs-appellants Michael Rider and Ron Rider are the sons of Clarence Rider and his wife, Viola Rider. Defendant-appellee Susan Rider Fontenot is the daughter of Clarence and Viola Rider, and she is also the wife of defendant-appellee Steven Fontenot. Clarence Rider died intestate in January of 1980, but all of the other above-named persons are still alive.
On October 31, 1977, Clarence and Viola Rider purported to sell their homestead, consisting of a house and about two acres of land, to their daughter Susan, as Susan's separate property, with her husband Steven Fontenot concurring in that status. Mr. and Mrs. Rider reserved the usufruct and habitation of the property for their lives, together and individually. The act of sale further provides:
"This sale made and accepted for and in consideration of the price and sum of SIXTEEN THOUSAND FIVE HUNDRED AND NO/100 ($16,500.00) DOLLARS, which has been advanced over the past several years for medical expenses, repairs on the home, necessary appliances and furniture and to expend the sum of $2,500.00 to renovate the home after the passage of this sale.
It is further understood that none of the above consideration will be paid in cash to sellers.
Contracting parties dispense me, Notary, from the production of the Certificate of Mortgage required by law.
THUS DONE AND PASSED at Ville Platte, Louisiana, on the day, month and year aforesaid in the presence of the undersigned, competent witnesses, who have signed with the appearers and me, Notary, after reading the whole.
WITNESSES
(signed with his mark)
---------- -----------------------
Clarence Rider
(signed)
---------- -----------------------
Viola G. Rider
(signed)
-----------------------
Susan Rider Fontenot
(signed)
-----------------------
Steven Francis Fontenot
--------------------
NOTARY PUBLIC"
As shown above, the act of sale was accomplished without any cash changing hands. The act was neither witnessed, notarized, nor recorded.
Subsequent to this purported sale, Mr. and Mrs. Rider continued to reside on the property, and apparently no one apart from the contracting parties was aware of the transaction. All litigants in this case agree that Mr. and Mrs. Rider had some misgivings about transferring the property, and therefore decided that, at the least, the sale act should not be notarized and recorded. Clarence Rider doubted the legality of the transaction, and he and Mrs. Rider were also concerned that the sale of the property could result in a termination of certain government benefits they were receiving.
Defendants continued to entreat Clarence and Viola Rider for a transfer to them of title to the Rider homestead and, on April 16, 1979, another act of sale was signed by the parties. This act purported to transfer title to the property to Steven and Susan Rider Fontenot, with Mr. and Mrs. Rider again reserving the habitation and usufruct of the property for their lives, together and individually. The act of sale further provides:
"This sale made and accepted for and in consideration of STEVEN FONTENOT clearing the mortgage indebtedness on said property which mortgage note was due Leslie Ardoin and was many years past due and the said STEVEN FONTENOT having paid said mortgage indebtedness which totaled $2,810.02,
the receipt whereof is hereby acknowledged, and full acquittance and discharge granted therefor. Contracting parties dispense me, notary, from the production of the Certificate of Mortgage required by law.
DONE AND PASSED at Ville Platte, Evangeline Parish, Louisiana on the day, month and year aforesaid in the presence of two undersigned and competent witnesses, who have signed with the appearers, and me, Notary, after reading the whole.
Witnesses
(signed by Frieda B. Fontenot) (signed)
------------------------------ -----------------------
--------
CLARENCE RIDER
(signed by Debra L. Guillory) (signed)
------------------------------ -----------------------
--------
VIOLA G. RIDER
(signed by Susan R
Fontenot)
-----------------------
STEVEN F. FONTENOT as
per SRF
(signed by Jack Fruge)
--------------------
NOTARY PUBLIC"
The mortgage indebtedness referred to in the act of sale was a debt owed by plaintiff Michael Rider to Leslie Ardoin, which was secured by a mortgage on the property of his parents. After the 1979 act of sale, Michael Rider was told that the debt to Ardoin was extinguished, but that he now owed the money to Steven and Susan Rider Fontenot. He then paid the $2,810.02 to Steven Fontenot, but neither he nor plaintiff Ron Rider were actually aware at that time that an attempt to transfer title to the Rider homestead to Steven and Susan Rider Fontenot was involved in the disappearance of the debt. Plaintiffs claim that Steven and Susan Rider Fontenot coerced Clarence and Viola Rider into transferring the property by telling the Riders that Ardoin would foreclose on the mortgage on their property if the debt was not paid immediately. Plaintiffs explain that the elderly, relatively impoverished Riders then decided that they would be better off if they agreed to give title to the property to the Fontenots in exchange for extinguishment of the mortgage.
The 1979 act of sale was recorded, and discovered by plaintiffs. It is this transaction that plaintiffs attacked in the petition that started this lawsuit. Plaintiffs averred that the mortgage indebtedness referred to in the act of sale was a debt owed by plaintiff Michael Rider to Leslie Ardoin, which was secured by a mortgage on the property of his parents. Plaintiffs further stated that Leslie Ardoin had agreed to allow Michael Rider to pay the debt "whenever he could," and that Ardoin had told defendants that "he was in no rush to collect the debt." Deposition testimony of Ardoin substantiates these averments, and makes clear that Ardoin had no intention of foreclosing the mortgage on the Rider homestead.
In their petition, plaintiffs claimed that the 1979 sale should be rescinded because of defendants' fraud, rescinded because of lack of consideration, or rescinded because of lesion beyond moiety. Alternatively, plaintiffs claimed that the 1979 sale was a simulation, a disguised donation, or an advantage to a forced heir.
The petition was filed in July of 1982. Subsequently, the litigants deposed potential witnesses, and prepared for trial. After several attempts to defeat or delay trial by exceptions, defendants filed a motion for summary judgment on November 3, 1983, shortly before a scheduled trial on the merits. Defendants' motion raised, for the first time, the 1977 act of sale, which was appended to the motion. Until the motion was filed, plaintiffs were not aware of the 1977 act of sale.
While he was preparing for trial, defendants' attorney added the following to the body of the 1977 act:
"STATE OF LOUISIANA
PARISH OF EVANGELINE
On this ____ day of _______, 19__, before me, personally appeared:
Viola Guillory Rider, Susan Rider Fontenot and Steven Francis Fontenot, to
me known to be the persons who executed for foregoing instrument, and
acknowledged that they executed it as their free act and deed for the uses,
purposes, and benefits therein expressed.
(signed) (signed)
--------------- -----------------------
Paula Courville VIOLA GUILLORY RIDER
(signed) (signed)
--------------- -----------------------
Vickie Hundley SUSAN RIDER FONTENOT
(signed)
-----------------------
STEVEN FRANCIS FONTENOT
(signed)
----------------------
J. JAKE FONTENOT
NOTARY"
The act of sale was then recorded prior to the motion for summary judgment (but well after suit had been instituted). It should be noted that Clarence Rider, vendor in the act of sale, died...
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