Spiers v. Davidson

• Citation: 233 La. 239,96 So.2d 502
• Decision Date: 10 June 1957
• Docket Number: No. 42866,42866
• Parties: Amalia Steen SPIERS v. Carrie Moore DAVIDSON.
• Court: Louisiana Supreme Court

Page 502

96 So.2d 502

233 La. 239

Amalia Steen SPIERS v. Carrie Moore DAVIDSON.

No. 42866.

Supreme Court of Louisiana.

June 10, 1957.

Alwine L. Mulhearn, Tallulah, Theus, Grisham, Davis & Leigh, Monroe, for plaintiff-appellant.

McHenry, Lamkin, Snellings & Breard, Monroe, Young & Watson, St. Joseph, for defendant-appellee.

HAWTHORNE, Justice.

This appeal is from a judgment of the lower court dismissing the suit of Mrs. Amalia Steen Spiers on numerous exceptions and pleas filed by defendant, Mrs. Carrie Moore Davidson, these being exception of no cause of action, exception of no right of action, pleas of prescription of one, four, and five years, exception of want of tender, and plea of estoppel. Appellant contends that the district judge erred in sustaining the exceptions of no cause and no right of action, want of tender, and plea of estoppel to her suit to set aside an act of sale by her mother, now deceased, to the appellee on the ground that it was a pure simulation.

The lengthy petition, which contains over 50 paragraphs, purports to allege numerous other causes of action besides the one in simulation. For instance, in the petition plaintiff sought to set aside the deed on the ground of lesion beyond moiety, to have it annulled as a donation in disguise, to have the act of sale reformed, to recover a money judgment for the amount paid on a mortgage on certain property, etc. Some of the exceptions and pleas which were sustained by the trial judge were aimed at these other causes of action. Appellant now, however, has abandoned all of these various causes of action except the one in simulation, which was pleaded in the alternative, and stated emphatically in argument before this court that she relies solely and entirely on this cause of action. Consequently the only question presented to us on this appeal is the correctness of the trial judge's ruling on the exceptions and pleas aimed at plaintiff's action to declare a simulation.

It is well settled that an exception of no cause of action addresses itself to the sufficiency in law of the petition and is triable on the face of the papers; that for the purpose of determining the issues raised by such an exception the well pleaded facts contained in the petition must be accepted as true; and that a suit will not be dismissed on exception of no cause of action if allegations of fact set forth a cause of action as to any part of the demand. Smith v. Kennon, 188 La. 101, 175 So. 763; Adkins' Heirs v. Crawford, Jenkins & Booth, 200 La. 561, 8 So.2d 539; Ingersoll Corporation v. Rogers, 217 La. 79, 46 So.2d 45; Kennedy v. Perry Timber Co., 219 La. 264, 52 So.2d 847; Ane v. Ane, 225 La. 222, 72 So.2d 485.

The following facts are alleged in the petition: That appellant is the only child of the marriage between Mrs. Alice Moore Steen and William J. Steen, both deceased, and is their sole heir; that on June 13, 1943, Mrs. Alice Steen conveyed certain real estate described in the petition to her sister the appellee, and this deed is duly recorded; that in this deed the vendee, Mrs. Carrie Moore Davidson, assumed the balance of $4,375 due on a promissory note secured by a mortgage on the property conveyed, which had been executed by the vendor on June 4, 1941; that this note was originally for $5,000 and was payable $125 quarterly; that the last installment fell due on June 4, 1951, and there was a complete cancellation of the mortgage on this date; that no cash consideration for the purported sale was paid by Mrs. Davidson or intended to be paid, and the conveyance was a mere simulation made by the vendor to avoid the payment of certain debts and obligations which she owed at the time; that the real estate conveyed was revenueproducing property, which was continuously rented and occupied both before and after the execution of the deed; 'that the true agreement made whereunder the property was deeded to Mrs. Davidson was that Mrs. Davidson would collect the rents and manage the property. That Mrs. Davidson would support Mrs. Stein (Steen) from the rents and revenues of the property, that Mrs. Davidson would pay off the mortgage creditors, that Mrs. Davidson would pay the necessary insurance, taxes etc., and other (sic) that Mrs. Davidson would account for the rents and revenues from the property as against the payment of the mortgage and the payment of support and other necessary expenditures to Mrs. Alice Steen or on Mrs. Alice Steen's death would account to Amalia Steen, and return to (the) property on the mortgage being paid off and the expenses being paid off from the income therefrom' (Paragraph 41, petition); that Mrs. Davidson was to meet the notes as they came due on the property, and was also to pay Mrs. Steen $250 per month from the proceeds of the property; and that she made the payments to Mrs. Steen until the latter's death on June 5, 1948.

Thus, in substance, the petition alleges that to defraud her creditors Mrs. Steen in 1943 pretended to sell the real estate in controversy to her sister, Mrs. Davidson, but that the true intention of the parties was that no transfer should take place, that the property should remain that of Mrs. Steen, that the mortgage apparently assumed by Mrs. Davidson and all taxes and repairs were to be paid out of the rents collected on the property, and that at some future appropriate time Mrs. Davidson was to reconvey the real estate to her sister or niece. In short, no title was to pass, and no consideration was to be paid.

Upon these facts appellant alleges that the conveyance was a simulated one which she as a forced heir has a right to annul by parol evidence under Article 2239 of the Louisiana Civil Code. That article provides:

'Counter letters can have no effect against creditors or Bona fide purchasers; they are valid as to all others; but forced heirs shall have the same right to annul absolutely and by parol evidence the simulated contracts of those from whom they inherit, and shall not be restricted to the legitimate (legitime).'

As conceded by counsel for appellee, a simulated contract is one which has no substance at all, or is purely fictitious and a sham, an act of mere pretense without reality. Such a contract, although clothed in concrete form, is entirely without effect and may be declared a sham at any time at the demand of any person in interest. See Houghton v. Houghton, 165 La. 1019, 116 So. 493; Hibernia Bank & Trust Co. v. Louisiana Avenue Realty Co., 143 La. 962, 79 So. 554; Lemann, Some Aspects of Simulation in...