Sanders v. Sanders

• Decision Date: 10 November 1952
• Docket Number: No. 40485,40485
• Citation: 222 La. 233,62 So.2d 284
• Parties: SANDERS v. SANDERS et al.
• Court: Louisiana Supreme Court

Page 284

62 So.2d 284

222 La. 233

SANDERS v. SANDERS et al.

No. 40485.

Supreme Court of Louisiana.

Nov. 10, 1952.

Rehearing Denied Dec. 15, 1952.

Reid, Burch & Reid, Amite, for defendants-appellants.

Ponder & Ponder, Amite, for plaintiff-appellee.

HAWTHORNE, Justice.

The defendant Mrs. Mina C. Sanders has appealed from those portions of a judgment recognizing the plaintiff William C. Sanders and the defendants Edgar C. Sanders, Donald E. Sanders, Thomas J. Sanders, and Mrs. Ruth Sanders Campbell as the owners of certain town lots in Kentwood, Louisiana, and condemning her to pay the sum of $1398.19, representing the balance in a joint bank account in her name and the name of Miss Emily Sanders, deceased, which the lower court decreed to have been the property of the deceased.

This judgment had the effect of declaring null and void on the ground of fraud a deed in which the town lots were conveyed to defendant by Miss Emily Sanders. The vendor named in the deed died on July 25, 1947, leaving neither ascendants nor descendants but survived by one brother, William C. Sanders, the plaintiff, and the four children of a predeceased brother, Henry Sanders, issue of his marriage to defendant Mrs. Mina C. Sanders. The children of this predeceased brother were joined with their mother as defendants in this suit which was instituted by the surviving brother.

The deed under attack, dated August 28, 1945, recites that for the sum of $100 cash Emily E. Sanders conveyed to Mrs. Mina C. Sanders a certain tract of land situated in the Town of Kentwood, Parish of Tangipahoa, State of Louisiana, consisting of Lot 24 and the east one-half of Lot 22 of Black 22 of that town. The deed is in the form of a notarial act of sale, reciting that it was executed and signed by the vendor and the vendee in the presence of Guy Dyson, notary public in and for the Parish of Tangipahoa, State of Louisiana, and in the presence of two witnesses, L. Miller and J. E. Lambert.

The plaintiff-appellee charges that the sale was made through the fraud of defendant-appellant Mrs. Mina C. Sanders, and that consequently the act of sale does not represent the agreement of her and Miss Emily Sanders. He alleges that Mrs. Mina C. Sanders entered into an agreement with the deceased, Miss Emily Sanders, in which Miss Sanders was to convey to her one-half of the property described above, or the back part thereof which consisted of a vacant lot, but that contrary to this agreement Mrs. Mina C. Sanders had the deed prepared by a notary so as to include all of the property, and that the deceased executed this deed in the belief that she was conveying only that part of the property covered by the agreement; that the appellant was able to perpetrate this fraud due to the failing physical and mental condition of the vendor, Miss Emily Sanders.

The defendants argue that the plaintiff, as a collateral heir, is without right or authority to attack this deed on the ground of fraud, and they cite numerous cases which they contend support this argument. The cases cited are authority for the proposition that collateral heirs are without right to attack an act of the de cujus made in violation of Article 1497 of the LSA-Civil Code, which forbids one to donate all of his property, or to attack an act of sale on the ground that it was simulated or a donation in disguise. These cases, however, are not pertinent or controlling in this case where the attack is based on fraud perpetrated on one of the contracting parties.

Where there are no forced heirs, a sane person may dispose of all of his property in any way he may see fit in the absence of some special prohibition, for he may do as he pleases with that which he owns. Such a special prohibition was found to exist in the case of Succession of Dupre, 218 La. 907, 51 So.2d 317, where it was held that collateral heirs may attack the contract of one from whom they would inherit on the ground that it is a disguised disposition derogatory to public order and policy.

In the instant case plaintiff, a collateral heir, attacks the deed not on the ground that it was executed by the deceased in fraud of his rights, but on the ground that there was a fraud perpetrated on the deceased vendor named therein by the one with whom she contracted, and this attack we think he had a right to make under Article 1881 of the LSA-Civil Code, which provides:

'Engagements made through error, violence, fraud or menace, are not absolutely null, but are voidable by the parties, who have contracted under the influence of such error, fraud, violence or menace, or by the representatives of such parties.'

Plaintiff, a legal heir, is a representative of the deceased and under this article has the right to bring an action to avoid a contract made through fraud perpetrated on her. Under these circumstances the question presented is whether the alleged fraud has been proved.

In the jurisprudence of this court it has been said that the charge of fraud is a most serious one; that one who alleges fraud has the burden of establishing it by legal and convincing evidence since fraud is never presumed, and that to establish the fraud exceptionally strong proof must be adduced. Strauss v. Insurance Co. of North America, 157 La. 661, 662, 102 So. 861; Garnier v. AEtna Ins. Co. of Hartford, Conn., 181 La. 426, 159 So. 705; Mutual Life Ins. Co. of New York v. Rachal 184 La. 430, 166 So. 129; Metcalf v. Monsour, 195 La. 570, 197 So. 235; Mente & Co., Inc., v. Roane Sugars Inc., 199 La. 686, 6 So.2d 731; American Guaranty Co. v. Sunset Realty & Planting Co., Inc., 208 La. 772, 23 So.2d 409. It has also been said that evidence showing that the fraud was probable or that the circumstances partook of a suspicious character is not sufficient, and that the fraud must be established by proof stronger than the mere preponderance of the evidence. Angichiodo v. Cerami, D.C., 35 F.Supp. 359; Fort v. Metayer 10 Mart. (O.S.) 436; Charrotte v. Louisiana College, 1 La.App. 438; Woodward v. Barringer, La.App., 24 So.2d 200.

Miss Emily Sanders, the vendor in the deed, and the defendant, Mrs. Mina C. Sanders, lived together for over 30 years in the Town of Kentwood. Henry Sanders and other brothers and sisters of Miss Emily as well as the children of Henry and Mrs. Mina Sanders were also members of this household, but those brothers and sisters are now dead, and the children of Henry and Mrs. Mina Sanders have resided elsewhere for a number of years. Plaintiff William C. Sanders, a resident of California, was never a member of this household. For many years this family resided as one household in a dwelling on the property described in the deed which stood of record in the name of Miss Emily Sanders and which was conveyed by her in the deed under attack, and, after the others died or left, Mrs. Sanders and Miss Emily continued to live there together.

This deed was dated August 28, 1945, and about 13 months later Miss Emily Sanders was sent to the East Louisiana State Hospital in Jackson, Louisiana, where she died on July 25, 1947, at the age of about 80 years.

To establish the fraud alleged, plaintiff relies on a series of letters written to him by the defendant Mrs. Sanders. In one of these letters, dated 20 days before the date of the deed, defendant wrote the plaintiff that Miss Emily had consented to sell to her one-half of the lot on which they resided, and that she proposed to build a cement house thereon. Defendant admits the writing of these letters, and in explanation of the fact that the deed covered the entire property on which they resided states that after the letter was written she and the deceased came to an agreement that, if she, Mrs. Sanders, would make certain improvements in the dwelling in which they lived together, she, Miss Emily Sanders, would include in the deed all of the property. After the execution of the deed the cement block house was constructed on the back lot of the property, and certain improvements were made in the principal dwelling, including plumbing, wiring, installation of a butane system, etc.

According to statements in these letters, the vendor's memory had become very poor, and her physical condition was rapidly deteriorating. Plaintiff argues that defendant was able because of these circumstances to have her sign the deed conveying the whole of the property, including the house in which they resided, when she had in fact...