
    No. 7096.
    Fritz Hackenburg vs. Mrs. C. Gartskamp, Tutrix, et al.
    A contract ol mandate for tho purchase of real estate can not be proved by parol evidence, even when fraud in the alleged agent is set up.
    Extra judicial admissions and confessions of a party can not be proved by parol, in a case where testimonial proof is inadmissible.
    APPEAL from the Second Judical District Court, parish of Orleans. Pardee, J.
    
      J. N. Hagins and J. Q. A. Fellows for plaintiff and appellant.
    
      B. G. Elliott for defendant and appellee.
   The opinion of the court was delivered by

Spencer J.

On 17th February, 1866, Mrs. Chiapella, by public act before Selim Magner, notary, executed in favor of John Gartskamp an act of sale of three lots of ground in the Sixth District of New Orleans, wherein she acknowledges to have received from him the price, as follows : $500 cash, and the note of purchaser for $500 more, payable to 'his own order, and endorsed at one year.

John Gartskamp died some years ago, and said property was inventoried as part of his estate, and is in possession of his widow and heirs, defendants in this suit, who produce and file in evidence herein the note above described.

On 10th January, 1878, plaintiff brought this suit against said widow and heirs, and alleges — ■

First — That he purchased by act .before Selim Magner, notary, on the 17th of February, 1866, these three lots and paid the price thereof, one thousand dollars, to Mrs. Chiapella.

Second — That John Gartskamp, deceased, acted as his agent and took the title in his own name.

Third — That Gartskamp repeatedly acknowledged the property to be plaintiff’s and promised to transfer it, and would have done it, but for his death.

The case came up for trial on first of February, and plaintiff amended his petition, alleging—

Fourth — That Gartskamp took the title in his own name without the knowledge or consent of xsetitioner, concealed said fact from petitioner for a long time in fraud, and that on making the second payment, nine months after the sale, petitioner was still ignorant that the title ■stood in Gartskamp.

On the trial plaintiff offered to prove these allegations by his own testimony, and that of other witnesses, which testimony being objected •to by defendants, as inadmissible, was rejected by the court, to which plaintiff excepted. There was judgment for defendants, and plaintiff appeals, and presents as the sole ground for decision the admissibility •of parol evidence to prove the allegations of his petition. He does not produce or pretend that there ever existed any written evidence whatever of the facts he alleges.

First — He i seeks to prove by parol a contract of mandate for purchase of real estate, which is prohibited by article 2992 O. O.

In Muggah vs. Greig, 2 L. 593, where the title of a slave was in Muggah, but the possession in Greig, who set up that the purchase was made for him, with his money, and that the slave had been delivered to him, this court said :

In the contract of sale or other transfer of immovables required by law to be made in writing and which the parties are not permitted to support by testimonial proof, written evidence ought to be produced, as being alone legally admissible to establish the authority by which an agency is assumed for either of the contracting parties.”

But the ease of Baden vs. Baden, 4 L. 166, is still more pointed and conclusive. That suit was brought to compel the defendant to convey and transfer to the plaintiff certain lots of ground, which plaintiff alleged were bought for her deceased husband (of whom she is heir), through the agency of defendant, who fraudulently took title and refuses to convey. The defendant in that case, as in this, offered in evidence an authentic act of sale to himself, showing that he took the title in his own name and paid the price, part in cash, and. gave his note for the balance.

Plaintiff offered to prove by parol that defendant, in making said purchase, acted as agent of her husband. The evidence was objected to. This court say, “the decision of. the case depends entirely on the legal admissibility of testimonial proof to establish a contract of agency relating to sales and purchases of real- estate.” It then states that the negative had been held in Muggah vs. Greig, 2 L. 593, and continues, “ But plaintiff’s counsel claims the right to introduce parol proof to establish the mandate against defendant, on -the ground of allegations of fraud against him in the petition. It is perhaps true, that contracts however solemnly entered into in appearance, and however completely clothed with legal formalities, may be annulled on account of simulation and fraud; and to prove such simulation and fraud, testimonial proof may be resorted to ; but this can be legally done only when necessity requires an infringement of the general rules adopted to protect the inviolability of written contracts. The provisions of our Oode render incompetent all oral testimony to prove a contract relating to the sale of real estate; and no means are left to a vendee of such things to enforce a verbal agreement to sell, except the oath of the vendor, although there is certainly a want of good faith and fraud on his part,in not'performing his promise. When third persons attack contracts for fraud, testimonial proof is of necessity admissible to establish it. But when the allegation of simulation and fraud comes from one of the parties to a contract, he is bound to establish it by some written evidence, such as counter letter, etc.” The court then says that “plaintiff’s object is virtually to make out a title in herself to real estate by oral evidence aloho,” by basing her claim on a parol contract of mandate. “To admit such proof would, in our opinion, violate the rules of evidence ordained by the articles o'f the Code and destroy the protection intended to be given by them to proprietors of the most important property (real estate) in the State.” See, also, 10 R. 35; 1 A. 73; 3 A. 333; 5 A. 132 and 201.

Second — Plaintiff seeks to.prove by parol the acknowledgments and extra judicial confessions of Gartskamp, in support of a demand, “ of which testimonial proof would be inadmissible,” which is not permitted. See 0. C.' 2290.

If plaintiff’s pretensions were admissible, the last barrier of safety for titles of real estate would be gone; for it would be then, by false swearing, possibl¿ to defeat every title.

• What the plaintiff alleges may be true; yet it is far better that he suffer the penalty of his own negligence than that the door to fraud and perjury be thrown open and titles to real estate be rendered insecure.

There is nothing in the case relied upon by plaintiff, 7 Mart. 243, “Hall vs. Sprigg,” to show that there was not written proof of the agency. See review of this case in 2 L. 593, above cited. The claim was that the defendant acting as-plaintiff’s agent, and buying with his money, had taken the title in his own name and refused to convey it to his principal. The objection was that parol evidence was inadmissible against or beyond the contents of the written title to defendant. The court said:

“ No such thing is .attempted here as contradicting the contents of the act; the plaintiff admits the whole of it; but he says that no such act ought to have been executed to the defendant in his own name, because he purchased as agent; and he says that after having caused the instrument to be so made, he is bound to transfer the property to his principal.”

But if that case (which was decided .under the Code of 1808) can be •construed as establishing the doctrine that by merely alleging parol agency in a purchase of real estate, and fraudulent- refusal to convey, one can recover real property, and maintain and establish title thereto, wholly by parol proof, we must say that it is in direct conflict with what are now fundamental principles of our law of titles, and overruled by the jurisprudence of half a century.

In the case of Caldwell vs. Hennen, 5 R. 20, cited by plaintiff, the agency was conclusively shown by written memoranda and other papers, made by A. Hennen, who actually made a formal title to his principal.

In Livingston vs. Morgan, 26 A. 646, also cited by plaintiff, the defendant had written numerous letters to plaintiff’s mother acknowledging the agency, and besides freely admitted on trial all the facts, but defended his rights on the ground that plaintiff had not provided the money to meet his (defendant’s) notes given for the price, after due notice to do so, and that,-as he had been left to pay for the land out of his own means, it was his, etc.

In conclusion, we would say that an action to enforce the contract of mandate, the trust of which it is alleged the agent has fraudulently violated, presupposes that there was such contract; and such action must fail when no legal proof of this fundamental fact is produced. In other words, one must establish by legal evidence the existence of a contract before he can show by parol its violation,

There is no error in the judgment appealed from, and it is affirmed with costs.

Dissenting Opinion.

Egan, J.

The reports of the decisions of this court are full of cases where parol evidence has been received and considered to affect title to real estate where fraud or error are charged. Were it otherwise, the doctrines of the law and the provisions of the Code on the subject of the effect of fraud and error invalidating contracts may as weli be expunged, as those guilty of fraud seldom or never leave written evidence of the fraud behind them, and error can seldom be otherwise shown. See C. C. 1881 and 1882. The reason why the true character of a simulated or pretended conveyance of real property can not ordinarily be shown as between the parties otherwise than Joy a counter letter, is because such conveyances are usually made to effect some fraudulent purpose, such as to shield the property of a debtor from the pursuit of his creditors, and in such case another principle of law intervenes and the law leaves the parties to the fraudulent conveyance where it finds them. That this is so, is manifest, becaus’e even in the same case, without any specific provision of the law in exception of the rule requiring written evidence to affect title to real estate, the courts have always permitted creditors to avoid the fraudulent contract made to their prejudice, arid for this purpose, to introduce parol evidence. Indeed, it may be doubted if we are without positive warrant for this in the general provision of article 1848 of the C. C. as to how fraud may be proved— (i. e.) by simple or by conclusive presumptions, or by other evidence — a provision of the law which has been uniformly interpreted in all that class of cases to permit the reception of parol evidence of the fraud. So, also, in regard to the proof of error, see 15 L. 311, Robert vs. Boulat, 9 A. 29, in which case the defendant was allowed to prove by parol that he was the real and actual purchaser of real estate instead of another person, to whom the sheriff had, through mistake, made the deed, and in whose name it had stood for years on the record. I think that the doctrine is as much consecrated in our law as in any other system that “ uberrima fieles” is required -of agents acting for others, and that they can not profit by their own fraud to appropriate either the money or the property of their principals; see Newton vs. York, 13 A. 18. To permit this would be to offer a premium for fraud and dishonesty. There is no propriety in applying to such cases the provision of the C. C. requiring a power of attorney to buy real estate to be in writing. It seldom happens that the principal who signs the power retains, or has any written evidence signed by the agent, of his acceptance of the trust or agency. The requirement that the power shall be in writing, as was well said in the case of Smith vs. Kemper, 4 M. 409, is intended for the protection of the agent and not of the principal. In point of fact, the agent seldom signs or accepts the power in writing for any purpose, and it would be singular indeed if the principal should be allowed to prove the agency by a writing signed by himself alone, and which might be created by him at pleasure, and hot to do so by the testimony of witnesses and admissions and acts of the agent. On the other hand, it would be equally singular if, as is the uniform practice, the only written evidence of the agency or power should be delivered to and left in the hands of the agent, who might deny its existence at pleasure to accomplish his fraud, and thus conclude his principal from all proof of the agency, if his own acceptance and acts as agent could not be shown by the best evidence in existence as in other cases. In the case of Hall vs. Sprigg, 7 M. 244, it was held that a purchase of land in one’s own name, though with the money of another, and as his agent, may be shown by parol. In Smith vs Kemper, 4 M. 409, it was held that the defendant claiming to be plaintiff’s agent, who had bought land without the knowledge or authority of the latter in his name, can not defeat the sale till the plaintiff declare whether he accepts it or not, and that the plaintiff should recover the land. See, also, Giannoni vs. Gunny, 14 A. 632. In the case of Brice vs. Doyal, 10 A. 575, it was held that the principal might recover a slave purchased by his agent without written proof of his agent’s authority to buy, and the suit itself was held to be equivalent to an original mandate in due form. C. C. 2979. In Nolan vs. Shaw, 6 A. 40, it was held that an agent using money or property of his principal has no title. In Exchange Bank vs. Yorke, 4 A. 138, it was held that where an agent makes for himself a purchase he should make for his principal, the latter may take and the former must account for it. It is matter of every day experience that administrators, tutors, and other fiduciaries and agents, made so by law, can not use the funds of their principals to acquire property for themselves, or acquire for themselves the property under their control, and that those whose interests are sought to be thus affected have the option to claim either the property, whatever its character, or the price or damages. This is but carrying out the universally recognized principle that an agent shall not be allowed to profit by a violation of his own trust or to do any act which shall place his own interest in antagonism to those of his principal. I am aware that there are decisions of this court based solely upon the literal terms of the law requiring written evidence to affect title to real estate in direct conflict with those views. I think that those decisions, however, are based upon too narrow a view of the law and a too literal application to cases like the present of general principles not so intended, and from the operation of which there is as much reason to except cases like the present as those of any other class involving fraud, error, or violations of trust. The decisions of other States and countries, and of the United States, teem with authority in consonance with the views for which I argue and which were, I think, properly recognized in the cases quoted, and especially in the earlier decisions of this court, to which as supported by right reason, and sound morals, I think we should recur. The works of highest general authority also, without exception, inculcate the same principles and doctrine. Indisposition has prevented my enforcing and elaborating my views on this important branch of the law as I would desire and had intended. I would reserve the right still to do so but that the condition of the docket and rapid approach of the close of the term of this court forbid it. For these reasons I dissent from the views of the majority of the court in this case, and think that it is one of the cases in which that “ necessity ” for a departure from the ordinary rule referred to by this .court in 6 A. 166 exists. See, also, 5 R. 20, and 26 A. 646. It is no more attempted here than in Hall vs. Sprigg, to contradict the written title, but to claim the benefit of it. If no written title bad been made, then the principle invoked by the defense would apply, but as it was made, the inquiry is, who is the real beneficiary under it. This, in a case of violation of his trust by the agent, we think may be shown by parol, as otherwise the grossest fraud would be protected by .resort to rules of law not intended to have that effect.  