Succession of Dejan

• Decision Date: 01 April 1888
• Docket Number: 10,053
• Citation: 40 La.Ann. 437,4 So. 89
• Court: Louisiana Supreme Court
• Parties: SUCCESSION OF PIERRE DEJAN -- JULES VICTOR AND ARTHUR DEJAN v. MRS. JOSEPHINE SCHAEFFER, WIDOW PIERRE DEJAN

4 So. 89

40 La.Ann. 437

SUCCESSION OF PIERRE DEJAN -- JULES VICTOR AND ARTHUR DEJAN v. MRS. JOSEPHINE SCHAEFFER, WIDOW PIERRE DEJAN

No. 10,053

Supreme Court of Louisiana

April 1, 1888

Rehearing refused.

APPEAL from the Civil District Court for the Parish of Orleans Tissot, J.

D. C. &amp L. L. Labatt and Thos. J. Semmes, for Plaintiffs and Appellants.

Frank D. Chretien and P. E. Theard & Sons, for Defendant and Appellee

OPINION

POCHE J.

Plaintiffs, suing as the natural brothers of Pierre Dejan, deceased, claim, as his only heirs at law, the naked ownership of the property belonging to him, as forming part of the community alleged to have existed between him and his surviving wife, up to the day of his death, on the 30th of October, 1886, he having left no children and no will.

The defense is that there is no property belonging to the community which once existed between Pierre Dejan and his widow; that said community was dissolved by the judgment of a competent court rendered on April 24, 1876, in execution of which the defendant bought in all the property which then stood in the name of her husband; and that all the property, one-half of which is claimed by plaintiffs, is her own separate estate, earned, acquired and purchased by her since the dissolution of said community.

That defense prevailed below, and plaintiffs appeal.

From the record it appears that the pivotal question in the case is the alleged absolute nullity of the judgment of separation of property rendered at the instance of the wife in April, 1876.

The pertinent facts are as follows:

Pierre Dejan, who was a colored man, and Josephine Schaeffer, widow Paul Krack, who was a white woman, began to cohabit together as man and wife in 1858; and being under existing laws (O. C. C., Art. 95) incapacitated from contracting a lawful marriage, they had recourse to a religious ceremony or marriage in order to sanctify their union, which took place on September 1, 1858. On the 18th of February, 1869, they appeared before a justice of the peace and contracted what they understood, and what purported to be, a lawful marriage. But, for reasons which are not apparent in the record, the parties went before a notary public on June 4, 1869, and ratified the private or religious marriage of 1858, in accordance with the provisions of Act No. 210 of 1868.

On the same day and before the same notary, Pierre Dejan made a declaration to the effect that at the time of his marriage with Josephine Schaeffer in September, 1858, she possessed in her own right the sum of $ 28,000, which she had acquired during her widowhood by her industry and through lucky circumstances.

It appears that up to that time she had been employed as housekeeper or servant by a family in this city, and that subsequently she assisted her husband or consort in his labors as a small dealer in furniture, his business consisting for some time mainly in purchasing, repairing and reselling second-hand furniture.

The business prospered and was soon transformed into a considerable furniture store, carried on in the name of Pierre Dejan. But he met with reverses, and in 1876 he was heavily indebted and greatly embarrassed, in consequence of which his wife brought a suit against him, for the restitution of her personal funds, in the sum of $ 28,000, and for a separation of property, averring, among other allegations, her ability and desire to carry on a furniture or grocery business, and her fears of losing the fruits of her earnings through the embarrassed condition of her husband's affairs and in the confusion of his losses, resulting from speculative ventures.

After personal citation on the husband, a default on his failure to answer, and after other due proceedings, trial and proof of the wife's demand, judgment was rendered in her favor as prayed for. After publication execution issued, and at the sale made thereunder, property of the husband, aggregating some $ 11,000, was adjudicated to the wife. That sale included the furniture store, which the wife has since carried on in her own name and as her separate industry, being therein assisted by her husband, who filled the functions of salesman and general clerk. In addition to the property thus and then acquired, Mrs. Dejan has since purchased considerable immovable property in her own right, as separate in property from her husband, by whom she was in every act of sale authorized and assisted.

Plaintiffs' contention is that the judgment of separation of property of April 24, 1876, is absolutely null and void, fraudulent and collusive, and that it covers a consent judgment and voluntary separation between the spouses prohibited by law, and that, therefore, the community existing between the spouses was not dissolved before the death of Pierre Dejan in October, 1886, and that all the property purchased in the name of the wife fell in the community.

The main ground of that contention is that the marriage of February 18, 1869, on which Mrs. Dejan had declared in her suit for separation of property was itself an absolute nullity, for the reason that the legal incapacity which impeded a lawful marriage between the parties had not yet been removed, and that, therefore, no community could flow from such an abortive attempt of marriage, as without a lawful marriage there can be no community of acquets and gains. Plaintiffs then contend that the only lawful marriage existing between Pierre Dejan and Josephine Schaeffer was that of September 11, 1858, as legalized by the notarial act of June 4, 1869, under the provisions of Act 210 of 1868, from which they argue that, under that statute, the community between the spouses dated and took effect from September, 1858, and not from February 18, 1869, as fraudulently alleged by the wife and as decided by the court in the decree rendered in her favor.

That theory is first antagonized by plaintiffs' pleadings, in which they allege that Dejan and his wife had been married on February 18, 1869, which averment was admitted by the defendant in her answer, thus judicially settling the status of the spouses and closing out all contestation or discussion thereon between the same parties.

Plaintiffs could not complain of being subjected to a rule of practice which, in another branch of the case, they invoke against their opponent, and which announces the doctrine as follows: "We understand it to be a rule in the administration of justice that a man shall not be permitted to deny what he has solemnly acknowledged in a judicial proceeding, nor to shift his position at will to a contradictory one in relation to the subject matter of litigation, in order to prostrate and defeat the action of the law upon it." (4 Ann. 416).

But, as they urge, in...