
    No. 9117.
    Bettie Scott vs. Mary E. Briscoe et als.
    None but creditors and forced heirs can attack the acts of an owner of property fraudulently alienating it.
    Article 1754, Civil Code, is applicable only to spouses who have forced heirs; and though the nullioy of donations, disguised or macte to persons interposed, is absolute, in the sense that they are not reducible merely, but wholly null, it is only relative to forced heirs, and cannot be invoked by mere simple collateral heirs.
    APPEAL from the Ninth District Court, Parish of Tensas, Hough, J.
    
      Julius Aroni for Plaintiff and Appellant.
    
      1Ü, I). White, J. W. Montgomery and Steele & fíwrreU for Defendants and Appellees.
   The opinion of the Court was delivered by

Manning, J.

The plaintiff is one of the nieces and legal heirs of William J. Briscoe, and sues his widow to annul her title to the Mound plantation in Tensas for die causes set in Mrs. Upshur’s suit just decided. Two other nieces of Briscoe, co-heirs with Mrs. Scott, refused to join her in the suit and are made defendants.

The sales and conveyances attacked in this suit have been annulled at the instance of Mrs. Upshur, a creditor of Briscoe. Nevertheless we liave to pass upon the question raised here, whether the plaintiff, being a simple and not forced heir, can attack the acts of Briscoe by and through which his wife acquired her title. Numerous decisions confine the right of this attack to creditors and forced heirs. Druman v. Klemnan, 31 Ann. 124; Stewart v. Mix, 30 Ann. 1036; Compton v. Maxwell, 33 Ann. 688; Brown v. Stroud, 34 Ann. 374; Kerwin v. Ins Co., 35 Ann. 33.

The judgment below recognised this settled rule and was in favour of the defendant, Mrs. Briscoe, rejecting the demand for annulment of her title at plaintiff’s instance, but recognised Mrs. Scott as one of the legal heirs of Briscoe with right to open his succession in form.

Judgment affirmed.

On Application por Rehearing.

Benner, J.

Our original opinion rested on the question of estoppel, which logically xn-imed and antidpated all other questions in the case.

Tt is conceded by plaintiff’s counsel that the numerous authorities quoted therein, fully sustain the general proxrosition, that simple heirs cannot be heard to falsify authentic declarations of their ancestors or to attack titles solemnly granted or recognized by him.

But a learned and ingenious argument is presented To establish an exception to this general rule iu the case of donations between husband and wife, disguised in the form of onerous contracts or made to persons interposed, on the ground that such donations are stricken with absolute nullity by article 1754 of the Civil Code.

It is claimed that the object of x>laintiff’s action is to show that the title to the proporty involved, was really acquired by Briscoe, and that he caused the same to bo x>laced iu the name of his wife, with the intention and effect of making to her a disguised donation.

Tt cannot be disputed, as a scientific proposition, that the result of an unqualified, absolute nullity, is to deprive the act of all effect whatever, to leave matters as if the act had not been done, and to open it to the attack of any person whatever, having the slightest interest.

Neither can it be denied that the French Court of Cassation, many of the ablest commentators upon the French code, and even this Court have, in general terms, declared that the nullity denounced by article 1754 (C. N., art. 1099) was absolute. 5 Toullier, No. 901; 1 Grenier, No. G91; 11 Dalloz, ch. 12, sec. 4, art. 3, No. 3; 4 Marcado, p. 245; Journal du Palais, 30 Nov., 1831; Id. 27 May, 1838; Succ’n of Ames, 33 Ann. 1328; Casanova vs. Acosta, 1 La. 179; Thibodeaux vs, Herpin, 6 Ann. 673.

The case last cited, taken in connection with the first decision therein reported in 5 Ann. 578, will be found to rest on peculiar principles.

With this exception, the assertions of absolute nullity referred to, were generally made in cases brought by forced heirs or in discussions touching the question whether such prohibited donations were null in their entirety, or only reducible to the disposable portion; on which question the courts and commentators of Prance are almost equally divided, many holding that they were reducible merely. 9 Duranton No. 831; Coin-Delisle, p. 614; also, Paujol-Rodier-Devilleneuve; Journal du Palais, 21 June, 1837.

This Court, as will be seen by the authorities above quoted, has adopted the former view. *

We feel no doubt, however, that the predication of absolute nullity is limited to the effect of the act's, and is not extended to the parties who may invoke it.

Whenever the question had been fairly presented, it has been uniformly held, so far as our diligent researches have extended, that the nullity referred to could not be invoked by mere simple, or collateral heirs. It came before the Court of Cassation in Prance as early as 1819, and the court disposed of it in these words:

“La eou/r de Bordeaux a suivi les vrais principes dm, droii en décidant que Vartiele 1099 était éira/nger á un iestateur qui ne laisscátpas dihériliers cwjamt droit a une réserve.” Journal du Palais, 1st April, 1819.

Mourlon evidently takes the same view, for, after stating the doctrine of absolute nullity, he proceeds: “Comment les Mriüers reservataires prouveront-ils l’intorpositíon de personnes ? ” obviously showing that he did not contemplate the possibility of other heirs having-such right. 2 Mourlon, No. 1023.

Coin-Delisle, in discussing the general declaration of absolute nullity which had been made in certain decisions, adds: Nous pensons bien

que la jurisprudence abandonnera cette qualification de nullité absolme, pour dire que la nullité n’est que relative á la personne des hóritiers á réserve, et declarer toujours les eollatéraux non-recevables.” CoinDelisle, p. 615, No. 16.

Aubry and Ran hold that the nullity attaches only when the prohibited donation is made with a view to commit a fraud upon the law by exceeding the disposable portion—whence it follows that when there are no forced heirs, and hence no limit to the power of disposition, the nullity does not apply. 7 Aubry and Rau, p. 276, note 24.

This view is enforced by an opinion of the Court of Cassation, saying: “Qu’il est de prinoipe que les parties peuvont faire un ckoix entre plusieurs moyens d’atteindre leur but, lorsque ce but est licite en luiméme, qu’ainsi l’interposition de personnes n’est pas condamnable qu’autant qu’elle a pu couvrir une fraude a la loi.” Journal du Palais, 7 Feb. 1849.

Finally Laurent, after stating the entire nullity of such prohibited donations, says: “II ya dependant une restriction qui résulte des termes de la loi. Le premier alinéa suppose que les donations excédent le disponible, c’est en faveur des réservataires qu’il établit la reduction des libéralitós excessives; douc le second, qui prononce la nullitó des donations dissimulées, doit etre limitó á la mérne hypothese. S’il n’y a pas des réservataires, la nullitó n’a plus raison d’etre. C’est it dire que Particle 1099 ne s’appliqne aux donations que les époux se font pendant le mariage que dans le cas oü ils ont des enfant.” Pie admits that French jurisprudence has derogated from this doctrine in so far as to hold that disguised or interposed donations between spouses, even when they have no forced heirs, may be revoked under the previous article 1096, (Art. 1749 of our code). But as Briscoe died without revoking, no such question is presented here. 15 Laurent No. 408, p. 462.

It is to be observed that the decisions of the French courts recognizing the right of the spouse who has made a disguised donation himself to invoke its nulllity, rest upon C. N. Art. 1096, and not exclusively onArt. 1099 (our Code Arts. 1749 and 1754), and have no application to the case where the spouse has died without revoking and without forced heirs. See specially Journal du Palais, 1873, January 22.

We have failed to fin d an autli ority recognizing such right in collateral heirs.

These authorities and the reasons upon which they rest satisfy us that the plaintiff in this case is without right to urge the nullity relied upon by her.

Briscoe had no children and no forced heirs. There was no limit as tQ his power of disposition of his property, saving the rights of creditors. He had the power to give to his wife all that he could give to a stranger. C. C. Art. 1746. lie had the capacity to give to her, and she to receive from him, his whole estate, without, in any manner, infringing the rights of this ordinary collateral heir. If it was his intention to give, it was a thing lawful in itself, operating no fraud upon any provision of the law, and he had the. right to select the mode of doing so. If he had received the title from Mrs. Gregory, and then donated it to his wife, neither plaintiff nor any one else, save creditors, would have had the right to complain. If, to avoid circuity, he had the title made directly to her, no law was violated and no injury done to plaintiff.

Prom this it follows that plaintiff does not bring herself within any exception to the rule of estoppel which bars her action.

We have not noticed the references made to Art, 2446, C. C., prohibiting sales between spouses save in certain cases; because, from no point of view, can this be regarded as a sale from Briscoe to his wife.

Rehearing refused.  