Succession of Nelson

• Decision Date: 14 December 1953
• Docket Number: No. 41184,41184
• Citation: 70 So.2d 665,224 La. 731
• Parties: Succession of NELSON (two cases). NELSON et al. v. WIEGAND et ux.
• Court: Louisiana Supreme Court

Page 665

70 So.2d 665

224 La. 731

Succession of NELSON (two cases).

NELSON et al. v. WIEGAND et ux.

No. 41184.

Supreme Court of Louisiana.

Dec. 14, 1953.

Rehearing Denied Feb. 15, 1954.

Ogden & Woods, William W. Ogden, Rodney P. Woods, Jr., New Orleans, Charlton B. Ogden, II, John A. Gordon, New Orleans, of counsel, for plaintiffs-appellants.

Titche & Titche, Bernard Titche, Jr., New Orleans, for defendants-appellees.

MOISE, Justice.

Plaintiffs, Mrs. Eleanor Nelson, wife of Lewis Dunbar, and Mrs. Ethelbert Nelson, wife of Edward Ott, daughters of the marriage of Albert James Nelson and Ethel Hill Lander, deceased, interposed this litigation in the successions of their parents. They seek to have set aside an act of sale and a dation en paiement which they allege are fraudulent simulations. After a trial on the merits, the trial court rendered judgment sustaining exceptions of prescription of four and ten years. The plaintiffs have appealed.

The act of sale is dated September 11, 1930 wherein Robert Wiegand purchased from Albert J. Nelson a certain lot of ground with all improvements, being known as Municipal Number 428 Lowerline St., New Orleans, Louisiana. The recited consideration was $10,000. The act mentions an encumbrance on the property by way of a mortgage of $15,000 in favor of Mrs. J. N. Schwing.

The evidence discloses that Mr. Wiegand was not a blood relation of the Nelsons but was their son-in-law, and at the time of the sale, the mental anguish of Mr. Nelson's absolute helplessness was worse than any physical act of pain because of the dire circumstances in which he was placed. He had pending about twelve criminal charges in the District Court. It is possible that his creditors were dogging his footsteps and knocking at his door for payment of alleged civil obligations. No doubt, he wanted to place his property beyond the reach of his creditors. Mr. Wiegand was the only one who would and could financially help him. The other actors, at that time, were to a degree dependent on Wiegand.

The reality of the transactions is the crux of the situation. If the sale is simulated, that is, without any consideration, the forced heirs' right to proceed accrued after their parents' death. In about 1935, Mr. Nelson was successful in having the criminal charges and suits dismissed in both the criminal and civil courts.

Mr. Wiegand's deceased mother had in her succession a $5,000 note made by Mr. Nelson. This note was secured by another collateral note in the sum of $15,000 which in turn was secured by a mortgage on the property, No. 428 Lowerline St., New Orleans, La. Mr. Wiegand paid his brothers their part of the note and assumed the liability. The note itself was never erased from the public records, but the $15,000 collateral note was cancelled. This transaction unquestionably constituted a payment of $5,000 of the recited consideration of $10,000, the purchase price of the Lowerline St. property.

The record shows that Mr. Nelson did not know at the time of the sale what the outcome would be with respect to the numerous charges and law suits filed against him, and he requested Mr. Wiegand, his son-in-law, to retain the $5,000 balance due on the Lowerline St. property to pay a legal fee which might become due and to maintain a roof over his wife and children's heads.

Many issues, inconsistencies and contradictions will be found in the voluminous record. To obtain a correct solution, we employ the methods used by Inspector Chafik, the Arabian detective of fiction. He likens the solution of a law suit to the weaving of a design. Each fact like the threads in the weaver's hand must fit in the proper place in the pattern, and the false premise, like an alien thread, must be discarded, and only when the design is complete to the last illusive thread, and a pattern can be received as a whole is a true solution possible. The district judge properly ordered a trial on the merits.

The adequacy of the consideration paid is a false premise, and, like an alien thread must be discarded because the deceased alone has a right to proceed on that ground.

Article 1861 of the LSA-Civil Code reads:

'2. In sales of immovable property, the vendor may be relieved, if the price given is less than one-half of the value of the thing sold; but the sale can not be invalidated for lesion to the injury of the purchaser.'

Article 1876 of the LSA-Civil Code prescribes:

'Actions for lesion are limited to four years, to date from the time of the contract between the persons of full age, and from the age of majority in contracts of minors.'

Article 2595 of the LSA-Civil Code states:

'Actions for recission (rescission) of sales on account of lesion beyond moiety must be commenced within four years. These four years, which respect to minors, begin only from the day they become of age. With respect to persons of full age, they begin from the day of the sale.'

A discussion of the balance of the purchase price is not necessary because both parents lived more than ten years after the passing of the act of sale and the dation en paiement took place, and the forced heirs are precluded by law from urging this contention. Mr. Nelson, the vendor, and Mrs. Nelson, the payor in the dation en paiement, had four years to attack their acts for lesion. If they did not take such action timely, they were bound by their contracts, and so are their forced heirs. There is filed in this record an account showing how the remaining $5,000 due on the Lowerline St. property was spent by Mr. Wiegand. Any comment on the accuracy of that document is not necessary for a proper solution of this case. Dura lex, sed lex. The law is hard, but such is the law. Henriques v. Vaccaro, 220 La. 216, 56 So.2d 236.

The dation en paiement is dated August 8, 1931. It recites that Robert Wiegand is a holder of a promissory note in the amount of $3,575 made by Mrs. Ethel Hill Lander, wife of Albert J. Nelson, secured by a mortgage on Mrs. Nelson's paraphernal property, with accrued interest of $238.33, due within sixty days. The act further recites that Mrs. Nelson is indebted to Mr. Wiegand in the sum of $4,781.51, various amounts loaned and advanced to her at different times, the entire sum being $8,594.84, and in payment of these obligations, she transfers to Mr. Wiegand a certain tract of land described as follows:

'A certain tract of land, with all the buildings and improvements thereon, and the right of batture in front (if any there is), situated in the Parish of Jefferson, right bank of the River Mississippi, opposite the City of Carrollton, measuring three arpents and three feet front on said River, by Eighty arpents in depth, bounded by the property of Le Breton D'Orgenois Deschappelles, and below by property of Mr. Quinette.'

The plaintiffs contend that at the time Mrs. Nelson made the dation en paiement, there was a definite promise on the part of Mr. Wiegand to return to her the separate and paraphernal property, which was known as 'Nine Mile Point.'

Here again is another alien thread that is not necessary for a solution of this case. There is neither a counter letter nor anything in writing which expresses an obligation so to do. Such an agreement cannot be proven by parol evidence except where there was no consideration, and the sale was simulated.

Mr. Nelson permitted more than ten years to elapse from the time of the transfer of the Lowerline St. property to Mr. Wiegand without taking any action, and Mrs. Nelson likewise permitted ten years to elapse from the date of the dation en paiement without taking action. They were therefore precluded from attacking by way of nullity or rescission the instruments herein involved.

Article 2221 of the LSA-Civil Code reads:

'In all cases, in which the action of nullity or of rescission of an agreement, is not limited to a shorter period by (a) particular law, that action may be brought within ten years.'

Article 2239 of the LSA-Civil Code 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).'

Thus, we see that children have the right under certain prescribed circumstances of attacking transfers made by their parents as...