Stothart v. William T. Hardie & Co.

• Decision Date: 30 March 1903
• Docket Number: 14,681
• Citation: 34 So. 740,110 La. 696
• Parties: STOTHART et al. v. WILLIAM T. HARDIE & CO. et al
• Court: Louisiana Supreme Court

34 So. 740

110 La. 696

STOTHART et al. v. WILLIAM T. HARDIE & CO. et al

No. 14,681

Supreme Court of Louisiana

March 30, 1903

Rehearing denied June 25, 1903.

Appeal from Third Judicial District Court, Parish of Bienville; Wm Usher Richardson, Judge ad hoc.

Action by Elvia Stothart and husband against William T. Hardie & Co. and others. Judgment for plaintiffs, and defendants appeal. Reversed.

Ben Allen Rennolds, for appellants.

Nettles & Teer and John C. Theus, for appellees.

OPINION

BREAUX J.

Statement of the Case.

This suit was brought by the late Mrs. Elvia Stothart and husband to have a sale of land annulled which she received as a donation from her father. Since the appeal, Mrs. Elvia Stothart died. Her surviving husband, as tutor of the children, was made a party.

In assailing defendants' title, they, in substance, set out that the firm of William T. Hardie & Co., composed of William T. Hardie, William F. Hardie, and Robert T. Hardie, are in possession under a transfer to them from the heirs of John T. Hardie and the other members of the late firm of John T. Hardie & Co.; that the transferrers, John T. Hardie & Co., composed of John T. Hardie, William T. Hardie, and Thomas G. Hardie, bought the land in question at sheriff's sale in 1892, which sale was made under execution in suit of John T. Hardie & Co. against W. J. & D. C. Stothart, to pay, plaintiff averred, a debt of her husband to W. J. Stothart and his brother; also a debt of the firm of W. J. & D. C. Stothart to the firm of John T. Hardie & Co.

It appears that at one time the firm of W. J. & D. C. Stothart were heavily in debt, mainly to John T. Hardie & Co. Plaintiff states that, at the suggestion of John T. Hardie & Co., she was induced in March, 1890, to transfer the land she now claims to D. C. Stothart, her brother-in-law, and partner of her husband, for $ 1,500, to be paid in the January following. She avers that the note representing that amount was made payable to bearer, and was retained by W. J. & D. C. Stothart, who pledged it to John T. Hardie & Co. to secure their indebtedness; and she charged that this transfer was made, as just stated, in order to avoid the law prohibiting a married woman from becoming responsible for her husband's debts; that it never was the intention to pay her.

John T. Hardie & Co. instituted foreclosure proceedings, via ordinaria, and obtained judgment on this note and mortgage. The judgment was executed. The property was sold and bought on March 19, 1892, by the firm of John T. Hardie & Co. for the sum of $ 300.

Defendants joined issue with plaintiff; pleaded estoppel on the ground that, in a suit brought by plaintiff against her husband, she alleged that at the time of her marriage with her husband, in 1886, and prior, she owned an undivided half interest in 1,200 acres of land appropriated by her husband; that she prayed for a separation of property and a dissolution of the community; that D. C. Stothart, in this suit, testified that he bought 600 acres of land from plaintiff for $ 1,500, and that the money on the note which he gave for the land was used in the firm of W. J. Stothart; that she obtained judgment for the $ 1,500 against her husband, and for a dissolution of the community.

Defendants deny that they were heirs of John T. Hardie, as alleged, and William T. Hardie and Robert T. Hardie deny that they were members of the firm of John T. Hardie & Co.

It seems that, after the death of John T. Hardie, in the settlement of the affairs of William T. Hardie & Co., William T. Hardie bought the land which plaintiff describes in her petition.

All of the defendants disclaim knowledge of the reasons why the plaintiff sold to D. C. Stothart the land which she now claims; and William T. Hardie, who attended to the loan made by the firm to Stothart & Co., swears that they never suggested or advised Mrs. Stothart, either directly or through counsel, to sell the property to D. C. Stothart, plaintiff's brother-in-law.

Upon another branch of the case (that relating to the separation of property from her husband), she testified that she had no knowledge of the suit filed in the case in her name against her husband for a separation of property. She further said, in answer to questions propounded, as follows:

"Q. Mrs. Stothart, what authorization did you give for the institution of that suit?

"A. I authorized Mr. Stothart to see to it.

"Q. Mrs. Stothart, what authority did you ever give any one to employ counsel to bring suit against your husband for a separation of property?

"A. I never gave any."

She also testified that she never talked to an attorney about obtaining a separation of property, and had no knowledge of the suit until some time after it had been brought, and that she never authorized her husband to bring suit, and she heard of the separation of property only some time after it had been obtained.

Before the statement of facts was closed, defendant objected to testimony offered, on the ground that it was not in rebuttal, as the testimony regarding the want of authority of the attorney who represented plaintiff in the proceeding for separation of property.

We must insert here a copy of the judge's ruling upon this subject, as it has bearing upon the issues, as will appear in our opinion:

"The plaintiff offered evidence which was an attack on an attorney, and this was ruled out, and defendant offered no evidence as to the authority of the attorney. So, therefore, there was nothing to rebut. Therefore the objection is sustained."

We close our account of the facts with the statement that plaintiff, with the consent of her husband, sold her property to her brother-in-law, who in turn mortgaged it to John T. Hardie & Co. The mortgage was foreclosed, and by conveyance the property passed into the ownership of William T. Hardie.

Opinion.

The question of estoppel, in the order of the issues, is the first before us for consideration. We have stated in our account of the facts that the contention on the part of defendants is that in a court of competent jurisdiction, in another suit, plaintiff alleged matters which are contradictory to the record in the suit before us for decision.

Plaintiff...