Ward v. Pennington

• Decision Date: 31 May 1983
• Docket Number: No. 82,82
• Citation: 434 So.2d 1131
• Parties: Walter Leroy WARD, III, et al. v. C.B. PENNINGTON, et al. CA 0669.
• Court: Court of Appeal of Louisiana — District of US

Page 1131

434 So.2d 1131

Walter Leroy WARD, III, et al. v. C.B. PENNINGTON, et al.

No. 82 CA 0669.

Court of Appeal of Louisiana First Circuit.

May 31, 1983.

Writs Denied Sept. 23, 1983.

Roger M. Fritchie and Chapman L. Sanford, Baton Rouge, for plaintiffs-appellants Walter Leroy Ward, III, Joy Gilbert Ward and Swan S. Ward.

Thomas H. Benton, Baton Rouge, for defendant-appellant Naomi Terry Ward.

Herschel L. Abbott, Jr., New Orleans, and J. Huntington Odom, Baton Rouge, for defendants-appellees C.B. Pennington, et al.

Before LOTTINGER, COLE and CARTER, JJ.

CARTER, Judge:

This is an appeal from a trial court judgment sustaining exceptions of no cause of action and prescription and dismissing plaintiffs' suit.

Plaintiffs ¹ filed suit on September 29, 1981, seeking recognition of an ownership interest in Mount Pleasant Plantation and for an accounting from the defendants with respect to sums realized from that property. Appellants base their claims on a letter, dated over 24 years prior to the filing of this suit, by C.B. Pennington, Sr. to W.L. Ward, Jr. and contend that the letter is a counter-letter translative, as between the parties, of an undivided one-half interest in and to immovable property. The letter is as follows:

"April 2, 1957

Mr. W.L. Ward, Jr.

Baton Rouge, Louisiana

Dear Mr. Ward:

This will confirm our verbal agreement that you own an undivided one-half interest in that certain agreement to purchase Mt. Pleasant Plantation between Edward E. Brown, the seller, and myself and C.B. Pennington, Jr., a copy of which agreement is attached hereto.

Upon your request, I will execute a formal agreement setting forth your individual one-half interest.

Very truly yours,

C.B. Pennington

CBP:mj

Encl."

The purchase agreement referred to in the aforementioned letter was executed between Brown and the Penningtons in February, 1957. A formal act of sale was executed in May, 1957, whereby Mount Pleasant Plantation was transferred from Edward Brown to C.B. Pennington and C.B. Pennington, Jr.

Defendants filed peremptory exceptions of no cause of action, no right of action, and prescription of 10 years under LSA-C.C. art. 3544.

After a hearing on the exceptions, the trial court sustained the exceptions of no cause of action and prescription of 10 years and dismissed plaintiffs' suit. ² Appellants contend that the trial court erred (1) in sustaining the exception of no cause of action and (2) in sustaining the exception of prescription.

NO CAUSE OF ACTION

In support of the contention that the trial court erred in sustaining the exception of no cause of action, appellants essentially assert that the document of April 2, 1957, is a counter-letter by which Walter Ward, Jr. obtained a one-half ownership interest in the binding agreement to purchase Mount Pleasant Plantation. Appellants further contend that the April 2 letter when coupled with the act of sale, alleged to have been executed by Pennington in a fiduciary capacity, gave Ward a one-half ownership interest in the property itself.

The first question presented is whether plaintiffs' petition states a cause of action for which relief may be granted. In order to sustain an exception of no cause of action, all allegations contained in plaintiffs' petition must be considered as true, and accepting them as true, the petition must fail to state a cause of action. Boyer v. St. Amant, 364 So.2d 1338 (La.App. 4th Cir.1978), writ refused, 365 So.2d 1108 (La.1978); Lewis v. Kehoe Academy, 346 So.2d 289 (La.App. 4th Cir.1977); LSA-C.C.P. art. 931. ³ The exception of no cause of action raises the issue of whether the law affords a remedy to anyone for the complaint advanced by the plaintiff. Willis v. State, 212 So.2d 555 (La.App. 1st Cir.1968). Stated another way, the purpose of such an exception is to determine whether under the allegations of the petition, the law affords any remedy for the grievance complained of. Willis v. State, supra; Adserv Corp. v. Lincecum, 385 So.2d 432 (La.App. 1st Cir.1980); Bamber Contractors, Inc. v. Henderson Bros., Inc., 345 So.2d 1212 (La.App. 1st Cir.1977).

In considering a petition against which an exception of no cause of action has been raised, every reasonable interpretation must be accorded its language in favor of maintaining the sufficiency of the petition and affording the litigant an opportunity to present his evidence. Hero Lands Company v. Texaco, Inc., 310 So.2d 93 (La.1975); Adserv Corp. v. Lincecum, supra.

Plaintiffs' claim of an ownership interest in Mount Pleasant Plantation is based on the April 2, 1957, letter ⁴ and the purchase agreement attached thereto which plaintiffs contend is a counter-letter as envisioned by LSA-C.C. art. 2239 ⁵. Although a counter-letter is not defined in the Civil Code, a relatively clear definition has developed in the jurisprudence. In Louis v. Garrison, 64 So.2d 254 (La.App. Orleans 1953) the court stated at page 257:

"The only mention of counter-letters in the LSA-Civil Code is to be found in Article 2239, which recites in part: "Counter letters can have no effect against creditors or bona fide purchasers; * * *." We have searched in vain for any codal or statutory definition of the term. In Karcher v. Karcher, 138 La. 288, 70 So. 228, 229, the Supreme Court, quoting Bouvier, defined a counter-letter as:

' "An agreement to reconvey where property has been passed by absolute deed with the intention that it shall serve as security only. A defeasance by a separate instrument." Bouvier.' [Emphasis by Supreme Court]

"Both 1 Bouvier's Law Dict., Rawle's Third Revision, page 814 and Black define the word 'defeasance' as 'an instrument which defeats the force or operation of some other deed or of an estate.' "

Black's Law Dictionary ⁶ defines counter-letter as:

"A species of instrument of defeasance common in the civil law. It is executed by a party who has taken a deed of property, absolute on its face, but intended as security for a loan of money, and by it he agrees to reconvey the property on payment of a specified sum. The two instruments, taken together, constitute what is known in Louisiana as an 'antichresis' (q.v.)."

The only logical interpretation of the April 2, 1957, letter is that it reflects a confirmation of a verbal agreement that Ward was the owner of an undivided interest in the agreement to purchase Mount Pleasant Plantation. Further, that when Ward so requested, Pennington would execute a formal agreement (which we interpret to mean "written") with Ward setting forth their verbal agreement and, we assume, the terms, conditions, etc. This constitutes, at the most, a promise to sell resulting in either party having the right to enforce the agreement if an appropriate action is timely filed. Cf. Lambert v. Succession of DeHass, infra. Thus, the letter under these circumstances simply is not a legal counter-letter wherein title to immovable property, as between the parties (Ward and Pennington), passed.

Appellants contend that Peterson v. Moresi, 191 La. 932, 186 So. 737 (1939) contains a "strikingly similar agreement." We disagree. In Peterson, supra, Moresi purchased seven acres of land on August, 19, 1907, for $2,000 cash. On the same day, Moresi signed an instrument which he called "Recognition of Interest" as follows at 186 So. pp. 737, 738:

"State of Louisiana

"Parish of Calcasieu

"Recognition of Interest

"I, A.P. Moresi, a resident of the Parish of Iberia, State of Louisiana, do hereby state that I have this day purchased from William Lee McFarlain, of the Parish of Acadia, State of Louisiana, Seven (7) acres of land, being a part of Lot numbered Three (3) in Section Forty-one (41) in Township Nine (9) South, Range Two (2) West, of the Louisiana Meridian, situated in the Parish of Acadia, in said State, and fully described in the warranty deed filed for record on this day, and that I have leased this day from the said William L. McFarlain Lots numbered Four (4) and Five (5), except the earthern tanks and buildings thereon, and being a party of said Section Forty-One (41), and also Twenty (20) acres in the Northeast corner of Lot Four (4) of Section Thirty-eight (38) in said township and range, and that the following named persons have the following interest in said property:

"A.P. Moresi an undivided 4/21 interest therein;

"S.A. Moresi an undivided 4/21 interest therein;

"A.D. Moresi an undivided 4/21 interest therein;

"Arthur Schexnayder an undivided 1/21 interest therein;

"Jules Maritzky an undivided 5/21 interest therein;

"Ike Maritzky an undivided 3/21 interest therein; and that said named persons have paid their pro-rata share and portion of said purchase price, and when so requested I will execute an act of transfer conveying to them or their assigns their respective interest in said premises.

"Witness my hand at Jennings, Louisiana, this 19th day of August, 1907, in the presence of the undersigned lawful witnesses.

"[Signed] A.P. Moresi"

"Witnesses:

"[Signed] David H. Livingston

"[Signed] J.H. Heinem."

Moresi died in 1936, and suit was thereafter filed by certain parties named in the "Recognition of Interest" instrument, seeking to be recognized as joint owners of the seven acres of land. The Supreme Court stated at 186 So. page 739:

"The instrument on which this suit is founded is neither a sale nor an offer to sell; it does not purport to be a transfer of title, or a promise on the part of A.P. Moresi to transfer title from him to the other persons named in the instrument. The instrument is merely an acknowledgment by A.P. Moresi that be (sic) bought the land for himself and as the agent for the other persons named in the instrument, and that they paid the price in proportion to the interests which they acquired, and hence that they all owned the property jointly and in the proportions stated in the instrument. A.P. Moresi's expression of willingness to execute an act of transfer if or when requested so to do was deemed...