Rush v. Landers, 14,003

CourtSupreme Court of Louisiana
Writing for the CourtMONROE, J.
Citation32 So. 95,107 La. 549
PartiesFRED. B. RUSH ET AL. v. FRANKLIN LANDERS; MARTHA E. LANDERS, INTERVENOR
Decision Date01 January 1901
Docket Number14,003

32 So. 95

107 La. 549

FRED. B. RUSH ET AL.
v.
FRANKLIN LANDERS; MARTHA E. LANDERS, INTERVENOR

No. 14,003

Supreme Court of Louisiana

January 1, 1901


Rehearing refused.

APPEAL from the seventeenth judicial district, parish of Vermilion. -- Gordy, Jr., J.

Wilson & Townley (W. B. White and W. W. Edwards, of counsel), for plaintiffs, appellants.

Walter Augustus White, for intervenor, appellee.

OPINION

MONROE, J. [32 So. 96]

[107 La. 550] Fred. P. Rush and George E. Townley, residents of Indiana, and original plaintiffs herein, in February, 1900, obtained [107 La. 551] judgment in the circuit court of Marion county, Indiana, against the defendant, Franklin Landers, also a resident of that state, in the sum of $ 4745.58, representing the principal and interest of a debt said to have been contracted in 1895, upon which judgment, in March, 1900, they instituted suit, in the district court for the parish of Vermilion, and caused to be seized, by attachment, a rice farm lying in that parish, which, they alleged, belonged to the defendant. The defendant, appearing through the curator ad hoc appointed by the court to represent him, answered, disclaiming title. Thereupon, Martha E. Landers, his wife, intervened, claiming to be the owner of the seized property by virtue of a conveyance made by her husband, in January, 1894, in part satisfaction of an alleged debt, for a larger amount, said to be due for separate funds belonging to her which had been delivered to, and used by, him, and praying that her title be recognized and the attachment dissolved. About the time that this intervention was filed, George E. Townley died and Morris M. Townley, his administrator, was made party plaintiff in his stead, and he and Rush answered the intervention, in effect, as follows, to-wit: that the property seized belonged to the community between Landers and his wife, and that the transfer of title to the wife, as set up by the intervenor, was null and void, because not within any exception to the prohibition contained in the law of this state against sales between husband and wife; because the property was worth $ 10,000.00, whereas the cash consideration of the alleged conveyance purports to have been $ 2000.00, and for the balance the wife undertook to bind herself with respect to certain mortgages bearing upon the property in the name of her husband; or, if it be held that she did not so undertake, then, that the price is "vile"; and that the debt claimed by plaintiffs is a debt of the community, for which said property remains liable. The answer concludes with a prayer that interrogatories on facts and articles be propounded to the intervenor, and for judgment, etc.

Interrogatories were accordingly propounded to, and answered by, the intervenor, under a commission executed at her residence, in Indiana, and the commission was duly returned, and made part of the record. The intervenor was, also, sworn as a witness in her own behalf, and testified orally; other evidence was adduced, and the case was argued and submitted, and decided in favor of the intervenor on the question of title, and in favor of the defendant by judgment of non-suit. And, from the judgment so rendered, the plaintiffs prosecute this appeal. In the course of the execution of the commission under which the intervenor answered the interrogatories on facts and articles, the [107 La. 552] point was reserved on behalf of the plaintiff that the answers were read from a paper which had been prepared in advance, and that the intervenor declined to answer in any other way and declined to state by whom the paper had been prepared. The point thus reserved was not, however, insisted upon in the district court, and has not been referred to by counsel for plaintiffs, who rely, in their argument before this court, upon their ability to show that the answers given by the intervenor to the interrogatories, and in her oral testimony, are self-destructive, and are overborne by other testimony. We take it, therefore, that the answers to the interrogatories on facts and articles are to be accepted subject to the conditions last mentioned, since they can hardly be used for the purposes of an attack upon the oral testimony given by the intervenor if they are to be excluded from the record. As to the effect of those answers, counsel for the intervenor contends that it can be destroyed only by the testimony of two witnesses, or of one witness and strong corroborating circumstances, which, he claims, have not been produced, whilst counsel for plaintiffs insist that such effect should be determined, in this case, by the rules applicable to ordinary testimony, for the reasons; (1), that the law governing the answers of the defendant in a case is inapplicable where interrogatories "are answered by one who, as intervenor, has the burden of proof"; (2), that certain of the answers of the intervenor, as to the value of the real estate in Indiana transferred to her by her husband, are merely expressions of opinion upon matters concerning which it does not appear that she was qualified to judge; and they further insist that, as to certain mortgages, which are said to have borne upon the Indiana property at the time of its transfer, the answers are contradicted [32 So. 97] by official certificates from the mortgage records; and, finally, that they are overborne, throughout, either by the testimony of two witnesses, or its equivalent.

The Code of Practice provides that "both plaintiff and defendant" may propound interrogatories on facts and articles (Art. 347), and the answers are given the same effect whether made by the one or the other, and irrespective of the burden of proof. The plaintiffs correctly assumed that, as they occupied the position of defendants, quoad the claim set up by the intervenor, they were entitled to propound such interrogatories to her, and, if this be true, there can be no reason why her answers should not be given the effect that would be accorded to those of a person occupying the position of plaintiff eo nomine. Prior to 1870, Article 354 of the Code of Practice read as follows: "The answers of the party "interrogated are evidence, but do not [107 La. 553] exclude adverse testimony, and may be destroyed by the oath of two witnesses, or of one single witness corroborated by strong circumstantial evidence, or by written proof." (Fuqua C. P. Art. 354.) And the case of Hynson vs. Texada, 19 Ann. 470, to which we are referred, was decided under the law as thus expressed. The present article 354 reads: "The answers of the party interrogated are evidence, but do not exclude adverse testimony, and shall be weighed by the judge as other testimony." And, for general purposes, to which the article applies, there can be no doubt that the answers referred to are to be dealt with as therein provided.

It is true that, under the Code of Practice as now written, it is well settled, as it was well settled before the amendment, that, as between the parties to a sale of real estate, there are but two ways of impeaching the title, which is required to be in writing, the one, by means of a counter letter, and the other, by interrogatories on facts and articles, and that, when answers to such interrogatories are substituted for the counter letter the title thus established can no more be impeached by parol testimony than if established in any other written form. Semere vs. Semere, 10 Ann. 704; Godwin vs. Newstadtl, 42 Ann. 735. This rule of exclusion applies, however, only to the parties to the instrument attacked and does not apply to third persons. Benoit vs. Broussard, 19 La. 387; Blake vs. Hall, 19 Ann. 52; Finley vs. Bogan et als., 20 Ann. 444; Carey vs. Richardson, 35 Ann. 505. We conclude, therefore, that, for the purpose of this case, the answers of the intervenor to the interrogatories on facts and articles are entitled to no greater effect than her oral testimony, given in her own behalf.

Counsel for plaintiffs also objected, in the course of the trial, to the proof of any other consideration for the conveyance to the intervenor of the property in controversy than that evidenced by the written instrument, and the objection was overruled. But, as the counsel themselves, appear to have opened the door to such proof by their interrogatories on facts and articles, and as they do not refer to the matter in their argument before this court, we assume that the objection in question, like the other, has been abandoned, and, for this reason, we make no ruling concerning it.

Proceeding upon the basis thus established, it...

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22 practice notes
  • Black v. Commissioner of Internal Revenue, No. 9385.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • July 27, 1940
    ...land is." Restatement, Conflicts, § 283. See also, Beale, Conflict of Laws, Vol. 2, § 283.1, pp. 952-953; 11 Am.Jur. 182; Rush v. Landers, 107 La. 549, 32 So. 95, 57 L.R.A. 353. And in Volz v. Zang, 113 Wash. 378, 194 P. 409, it was held that an instrument identical in form with the one her......
  • Douglas v. Douglas
    • United States
    • United States State Supreme Court of Idaho
    • July 15, 1912
    ...note to Brookman v. Durkee, 12 L.R.A. N.S. 921.) On the other hand, real property is governed by the law of its situs. (Rush v. Landers, 107 La. 549, 32 So. 95, 57 L. R. A. 353, and note.) Then we have this situation: That real property is purchased in this state by a married man and during......
  • Loranger v. Citizens' Nat. Bank of Hammond, 26291
    • United States
    • Supreme Court of Louisiana
    • January 3, 1927
    ...[162 La. 1059] the title to the property, apparently, in the vendor, and subject to seizure at the suit of his creditor." Rush v. Landers, 107 La. 549, 560, 32 So. 95, 57 L. R. A. 353. In such a case the creditor is not required to resort to a direct action in avoidance of the sale before s......
  • Succession of Lewis, No. 1162
    • United States
    • Court of Appeal of Louisiana (US)
    • November 4, 1963
    ...state such sale, except in the cases and for the consideration as provided for in LSA-C.C. art. 2446, is illegal. See Rush v. Landers, 107 La. 549, 32 So. 95, 57 L.R.A. 353. And as one spouse is forbidden to acquire the property of the other spouse by direct sale, he cannot do it indirectly......
  • Request a trial to view additional results
22 cases
  • Black v. Commissioner of Internal Revenue, No. 9385.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • July 27, 1940
    ...land is." Restatement, Conflicts, § 283. See also, Beale, Conflict of Laws, Vol. 2, § 283.1, pp. 952-953; 11 Am.Jur. 182; Rush v. Landers, 107 La. 549, 32 So. 95, 57 L.R.A. 353. And in Volz v. Zang, 113 Wash. 378, 194 P. 409, it was held that an instrument identical in form with the one her......
  • Douglas v. Douglas
    • United States
    • United States State Supreme Court of Idaho
    • July 15, 1912
    ...note to Brookman v. Durkee, 12 L.R.A. N.S. 921.) On the other hand, real property is governed by the law of its situs. (Rush v. Landers, 107 La. 549, 32 So. 95, 57 L. R. A. 353, and note.) Then we have this situation: That real property is purchased in this state by a married man and during......
  • Loranger v. Citizens' Nat. Bank of Hammond, 26291
    • United States
    • Supreme Court of Louisiana
    • January 3, 1927
    ...[162 La. 1059] the title to the property, apparently, in the vendor, and subject to seizure at the suit of his creditor." Rush v. Landers, 107 La. 549, 560, 32 So. 95, 57 L. R. A. 353. In such a case the creditor is not required to resort to a direct action in avoidance of the sale before s......
  • Guillory v. Latour, 20938
    • United States
    • Supreme Court of Louisiana
    • October 18, 1915
    ...La.Ann. 435, 23 So. 738; Willis v. Scott, 33 La.Ann. 1026; Weathers v. Sheriff, 52 La.Ann. 932, 27 So. 538; Rush v. Landers, 107 La. 560, 32 So. 95, 57 L. R. A. 353. 3. The injunction should not have issued against the entire execution upon the allegation that the seizure was for an amount ......
  • Request a trial to view additional results

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