
    Celia MURRAY, Plaintiff-Appellant, v. Leon SHAW, Defendant-Appellee.
    No. 5994.
    Court of Appeal of Louisiana. First Circuit.
    June 1, 1964.
    Rehearing Denied July 1, 1964.
    Walton J. Barnes, Baton Rouge, for appellant.
    F. Louis Gonzales, Baton Rouge, for appellee.
    Before ELLIS, LOTTINGER, HER-GET, LANDRY and REID, JJ.
   ELLIS, Judge.

This is a suit by plaintiff to evict the defendant from the property described as Lot No. 13 of Sq. No. 45 in South Baton Rouge and which is located on East Johnson Street. In this suit, plaintiff alleges her ownership of this property by virtue of notarial act of sale from her sister, Mattie Murray, of the latter’s undivided one-half interest, passed before H. Alva Brumfield, Notary, on the 8th day of February, 1946 and duly recorded in the records of the Parish of East Baton Rouge.

The defendant in his answer resists eviction on two grounds. First, at the time his wife, Mattie Lewis Candóle Shaw, transferred her one-half interest in the property to her sister, Celia Murray, plaintiff herein, she was on that date married to Sidney Candóle and had no authority to make the transfer as the property was acquired during the existence of the community between Sidney Candóle and his wife, Mattie Lewis Candóle.

Second, “That not knowing how to read or write, the said Mattie Murray Lewis (Mattie Murray Candóle Shaw) was induced by fraudulent representations by Celia Murray to append her mark to said purported act of sale referred to in paragraph 6 above, in ignorance of what she was doing.”

The lower court with oral reasons dictated into the record at the end of a long trial rendered judgment dismissing plaintiff’s suit for eviction and nullifying the act of sale from Mattie Murray Lewis to Celia Murray by which the former conveyed her undivided one-half interest to the latter in tlie property which is the subject of this suit. It is from this judgment that the appeal was perfected by the plaintiff.

Although the record in' this case is voluminous and some of the testimony rather difficult to follow or understand due to the fact that most of the witnesses were illiterate and, as mentioned by the trial judge, of low level mentality, we believe that the record fully supports the following facts. It is shown that the plaintiff was a natural sister of the decedent, Mattie Murray Lewis Candóle Shaw, who was born in the Parish of East Baton Rouge in June, 1899, and who also died in the same parish on the 17th day of July, 1961. It is shown that the sister, Mattie Murray Lewis, lived in the Parish of East Baton Rouge until the year 1914, when she left and resided in the town of Napoleonville, Louisiana, where she met and married Sidney Candóle on the 12th day of January, 1918. During the year, 1924, Mattie Murray Lewis Candóle, who was still married to Sidney Candóle, returned to the City of Baton Rouge where she lived separate and apart from her husband, Sidney Candóle, until the year 1942. While the defendant attempted to prove that Mattie Murray Lewis Candóle had not remained exclusively in Baton Rouge and separated from her husband, we are convinced from the record that she resided alone, and never lived with or returned to her husband during this time. On October 3, 1938, the plaintiff herein and her sister, Mattie Murray Candóle, purchased jointly and severally from Robert A. Hart, the lot or portion of ground located in the City of Baton Rouge involved in this eviction suit. In this act of sale the decedent, Mattie Murray Candóle (at that time) declared herself to be a “femme sole”. The plaintiff built a house on one-half of the property and her sister also built a house on her half of the property with her personal earnings. Apparently both were industrious. Approximately four yea.s subsequent to the acquisition of the property by the two sisters and some time during the year 1942, Mattie Murray Candóle went back to Napoleon-ville, Louisiana, and again resided with her husband, Sidney Candóle, and they lived together until his death on the 25th day of June, 1948. On the 8th day of February, 1946, and while she was still living with her husband, Sidney Candóle, Mattie Murray Lewis Candóle, sold her one-half undivided interest in this property to her sister, Celia Murray, plaintiff herein, by cash act of sale in authentic form which was passed before H. Alva Brumfield, Notary, and duly recorded on February 13, 1946, in the records of the Parish of East Baton Rouge.

Also in this record is a petition by the defendant as the widower of Mattie Murray Lewis Candóle Shaw and sworn to by him in which he alleged that no children were born of the marriage between his deceased wife and her former husband, Sidney Candóle, nor did they ever adopt anyone or ever been adopted by anyone and that both his parents predeceased him by many years.

As to the first ground of attack by the defendant, under the testimony which we believe the record fully supports, Mattie Murray Candóle was and had been living separate and apart from her husband, Sidney Candóle, from 1924 to 1942. During this time she worked and earned enough not only to support herself but on the 3rd day of October, 1938 purchased her undivided interest in the property for cash, with her separate and paraphernal funds. Under Article 2334, LSA-Civil Code, the pertinent portion of which is as follows:

“ * * * The earnings of the wife when living separate and apart from her husband although not separated by judgment of the court, her earnings when carrying on a business, trade, occupation or industry separate from her husband, actions for damages resulting from offenses and quasi offenses and the property purchased with all funds thus derived, are her separate property,”

this undivided interest became her separate property.

As to the second ground of attack that due to the fact Mattie Murray Lewis Candóle did not know how to read or write she was induced by fraudulent representations of the plaintiff to put her mark to the purported act of sale passed before H. Alva Brumfield, Notary Public for the Parish of East Baton Rouge, on February 8, 1946, no citations or authorities are needed for the legal proposition that fraud is never, presumed but must be specifically alleged and proven by the one making such an allegation. This record contains absolutely nothing which would in any way indicate that Mattie was deceived, coerced or tricked into signing the act of sale she executed in 1946, transferring her undivided one-half interest in the property to her sister, the plaintiff herein. Moreover, the act of transfer was before a Notary and two witnesses, none of whom were called to testify concerning the circumstances surrounding the execution of the document. The defendant contends that he has proven fraud because of testimony to the effect that his deceased wife continued to live on the property after the execution of the deed to the plaintiff herein, and considered the property as her own, and made certain improvements thereon subsequent to the act of sale. Also, that plaintiff was more literate than her deceased sister and had full and complete charge of the latter’s affairs and business, even her bank account. There is no question but that plaintiff’s deceased sister continued to live in the home and made some improvements, and that the plaintiff did, in fact, handle all of Mattie’s affairs, including her bank account, and had there been any intention on her part to commit fraud, it would appear that since she had the power of attorney, she might have drawn Mattie’s funds out of the City National Bank, yet the record clearly shows that there remained in the account a balance of $588.81. In addition, Celia admits that she drew $800.00 from the account following Mattie’s death and has accounted for the bulk of the sum because $640.00 was paid for Mattie’s funeral expense, $35.00 for flowers, $15.00 for automobiles hired for Mattie’s funeral. She readily conceded she kept the remaining portion of the $800.00 withdrawn and also $100.00 paid by Society on account of Mattie’s death because she, Celia, had deposited $300.00 to the account and this was her way of retrieving said sum.

In our opinion, all that the record shows is that Celia (plaintiff) did in fact handle Mattie’s affairs but we believe it falls far short of proving by clear and convincing evidence that Celia, by fraud or deception, secured Mattie’s signature on the sale. On the contrary, we believe it reflects a situation where, for reasons best known to the two sisters at the time, Mattie agreed to sign the sale voluntarily. While it may be that the sum of $150.00 cash, stipulated in the sale, was never paid by Celia, even assuming her failure to have paid said amount, (which we would have to do as there is no proof that she did not pay it) this would not necessarily constitute the sale fraudulent. It might very well be that Mattie intended the sale to be a donation in disguise, although, of course, the record does not show this to be the case. Considering all the aspects of this case and after careful consideration of the record, we cannot brand plaintiff as having committed deliberate fraud.

Being of the opinion that the judgment of the lower court is clearly erroneous, the same is hereby reversed, annulled, and set aside and it is now ordered, adjudged and decreed that there be judgment in favor of Celia Murray and against Leon Shaw, ordering him to vacate and to deliver over possession of the premises now occupied by him at municipal number 889 East Johnson Street, Baton Rouge, Louisiana, to Celia Murray and which property is more fully described as follows:

A certain parcel of ground situated in the Sixth Ward of the Parish of East Baton Rouge, Louisiana, about a mile South of the City of Baton Rouge, in that subdivision known as South Baton Rouge, and designated according to the official plan thereof on file in the office of the Clerk and Recorder for the said Parish of East Baton Rouge, as follows: Beginning at the southwest corner of Lot No. Thirteen (13) of Square No. Forty-five (45) thence proceeding southward along the projection of the west line of said lot No. Thirteen (13) a distance of One Hundred (100) feet and corner; thence eastward parallel to Monroe Street a distance of Forty (40) feet and corner; thence northward along the projection of the east line of said Lot No. Thirteen (13) a distance of One Hundred (100) feet and corner; thence westward along the south line of said Lot No. Thirteen (13) a distance of forty (40) feet to point of beginning; thus forming a plot of ground immediately south of and adjoining Lot No. Thirteen (13) of Square No. Forty-five (45) South Baton Rouge, said lot measuring Forty (40) feet on its north and south lines which are parallel to Monroe Street, and measuring One Hundred (100) feet on its east and west lines which are parallel to each other.

All costs are to be paid by the defendant, Leon Shaw.

Reversed and rendered.

HERGET, Judge

(dissenting).

Celia Murray, plaintiff, prosecutes this appeal from a judgment rendered in the District Court dismissing her suit for eviction of the defendant, Leon Shaw, and declaring null and void a sale to her by Mattie Murray Lewis of an undivided one-half interest in Lot 13, Square 45, of a subdivision in the City of Baton Rouge known as South Baton Rouge.

Celia Murray and Mattie Murray Lewis were sisters. Mattie Murray Lewis died in 1961. One month thereafter plaintiff, Celia Murray, instituted this suit to evict Mattie’s widower, Leon Shaw, from the premises.

Shaw answered plaintiff’s suit and filed a reconventional demand in which he alleged the sale from Mattie Murray Lewis to Celia Murray was defective in two respects: (1) the property allegedly transferred by Mattie Murray Lewis was community property and Mattie Murray Lewis, accordingly, had no authority to transfer same; and (2) plaintiff, Celia Murray, fraudulently and deceptively prevailed upon Mattie to execute the deed by which the property was in fact conveyed.

To the reconventional demand filed by Leon Shaw, plaintiff, Celia Murray, filed exceptions — of prescription, no cause and no right of action and a plea of estoppel —contending the right to contest the act of sale in question had been prescribed inasmuch as more than ten years had elapsed from the date thereof prior to the assertion of the claim; and, further, Leon Shaw was without right to contest the sale.

LSA-C.C. Art. 1921 provides:

“Effect of transferror remaining in possession of immovables
“Art. 1921. In cases, however, of contracts, which purport to transfer the ownership of immovable property, if he who transfers it is suffered by the obligee to reamain in corporal possession for a longer time than is reasonably required to deliver the actual possession and to act as owner, to the injury of a third person, who may afterwards contract with him, or acquire rights upon his property as creditor, it will be considered as a mark of fraud, and will throw the burden of proving that the contract was made bona fide upon him to whom the ownership of the property was transferred by the first contract, in any controversy with creditors of the obligor or persons acquiring bona fide intermediate rights by contract with him.”

I believe a casual reading of this article is sufficient to, when considered with my evaluation of the evidence tendered on the trial of this case of the attempted fraud perpetrated, make evident — though in sales wherein the parties act in good faith ten years prescription is sufficient to make valid the title — the factual situation depicted herein is the very antithesis of good faith. Accordingly, the plea of prescription should be overruled.

Insofar as the plea of estoppel and the exception of no cause and no right of action are concerned, I am of the opinion same are without merit inasmuch as Leon Shaw, the sole heir and surviving spouse of his deceased wife, Mattie, who died leaving no ascendants or descendants, is presumed to have an interest in her suc-cesssion, of which the property here in contest is a part.

This record is replete with discrepancies and contradictions and contrary to the fact many believe “truth will not out” where there is fraud and deceit, the light does show thereon. Fortunately, this condition is made evident by the introduction of documentary evidence from which I am in a position to justiciably resolve the issues, confident my decision in this respect is well supported and I can, with ease, discard the improbable, and what I believe to be the untruthful, versions presented for my consideration by witnesses for Plaintiff.

I glean from the evidence Celia Murray possessed a higher degree of intelligence than did either her sister or the witnesses who gave testimony on the trial of the factual situation we are called upon to resolve. It is apparent Celia resolutely "and with deliberate cunning sought to acquire the interest of her sister in the property.

In my appreciation of the evidence I believe same reveals Mattie and Celia were illegitimate children of Annie Brister, who, by convenience, at one time lived with a man named George Lewis and at another time sojourned with a man by the name of Murray. Presumably these, or one of them, was the natural father of Mattie and Celia.

On October 3, 1938 Celia Murray and Mattie Murray Lewis jointly purchased from Robert A. Hart the property over which this controversy arises. In the act of sale it was recited both vendees were “femme soles”. Despite this recitation in the act of sale, the evidence unquestionably shows Mattie married Sidney Candóle in the Parish of Assumption in the year 1918; that Sidney Candóle died on June 26, 1948 and there is no evidence of a divorce having been obtained by either party,, though, in 1938, at the time Mattie and Celia purchased the property contention is made that at that time Mattie and Sidney were living separate and apart I am unable to determine whether Sidney and Mattie were living separate and apart upon the acquisition of the property. On this point the testimony of the witnesses is in hopeless and irreconcilable conflict and therefore does not support the conclusion of the majority, Mattie “resided alone, and never lived with or returned to her husband during this time.” Nonetheless, I perceive no need to resolve the question of the paraphernality of the property to determine the validity vel non of the sale. Upon the acquisition of the property by these devoted sisters, each built houses on the property and each lived in her own house until Mattie died in 1961. On February S, 1946 Mattie, by notarial act, sold her interest in the property to her sister, Celia. This is the sale for which nullity is sought and is the object of this controversy. It is noteworthy in the act of sale there is the recitation that Mattie was married but once and then to Sidney Lewis, whereas Celia Murray was described as a “femme sole”. Though the recitation is made Mattie was married to Sidney Lewis, no evidence of such marriage was offered in the record. Had the act of sale of 1946 depicted truthfully the marital stati it should have apprised the world that Mattie was married at that time to one Sidney Candóle and her sister, Celia, was married to Manzy Williams, whom she married in 1940.

I am of the opinion counsel for the Defendant is mistaken in his assertion that a sale, wherein a wife sells community property without her husband’s appearance therein, is an absolute nullity. Though, unquestionably in such a transaction, the husband might have valid reasons to attack such a sale and seek its voidance, the evidence herein shows Sidney Candóle, who presumably may have instituted such suit, departed this life on June 26, 1948 long prior to the institution of the present litigation and there is no appearance made by his representatives protesting the right of Mattie Murray to sell the property in controversy.

Under LSA-C.C. Articles 2334 and 2402 property purchased in the name of either spouse during the existence of the community is presumed to be community property even though the deed recites the para-phernality thereof and even though in the acquisition of property by a married woman there is a policy to make the recitation of paraphernality in the deed itself, such declarations are not fatal and the presumption falls when the evidence reveals the property to have been purchased with para-phernal funds under the separate administration of the wife. Smith v. Smith, 230 La. 509, 89 So.2d 55; Succession of Blades, La.App., 127 So.2d 263.

Mattie Murray married Leon Shaw, defendant herein, on September 20, 1949. They lived on the premises in dispute until Mattie’s death.

The validity of the sale is further contested by Defendant on the ground he and his wife, Mattie, lived on the premises for thirteen years, Mattie believing herself to be the true owner.

I am not impressed with the testimony of Celia wherein she would have this Court believe her incredulous contention, considering Mattie’s meager means, she permitted her to remain on the premises rent free, as a satisfactory explanation of her willingness to permit Mattie to remain on the premises. The circumstances under which the sale in this instance was made thereby distinguishes our holding in Succession of Kramer, La.App., 130 So.2d 688, wherein, though there was a presumption of simulation, this presumption was rebutted, and the true consideration was proved to have been given.

LSA-C.C. Art. 2480 provides:

“Retention of possession by seller, presumption of simulation
“Art. 2480. In all cases where the thing sold remains in the possession of the seller, because he has reserved to himself the usufruct, or retains possession by a precarious title, there is rear-son to presume that the sale is simulated, and with respect to third persons, the parties must produce proof that they are acting- in good faith, and establish the reality of the sale.” (Emphasis mine.)

Inasmuch as Mattie could neither read nor write Celia obtained a power of attorney to make deposits in and withdrawals of funds from Mattie’s bank account. Unquestionably Mattie entrusted all business matters to the judgment of her sister. In 1959 Mattie and Leon Shaw desired to make certain improvements in the property, consisting of adding a room and bath and installing a window screen. Celia obtained the necessary funds for such improvements, $1,373.60, by placing a mortgage on the property, executing a note for said amount and obtaining Mattie’s endorsement thereon. Mattie and Leon paid the amount of this note with their own funds and, in addition, paid the taxes on the property and paid a sewerage tax and property lien thereon.

Giving consideration to the evidence elicited on the trial of this case and the presumption delineated in LSA-C.C. Art. 2480, quoted supra, I have no difficulty in concluding the alleged sale from Mattie to Celia was simulated, a sham and of no legal effect.

I am in thorough accord with the finding of the Trial Court, Celia attempted to take advantage of her sister’s illiteracy and fraudulently acted in an attempt to obtain the property.

As Defendant and Plaintiff in reconvention, Leon Shaw additionally seeks the sum of $210 which Celia Murray withdrew from the bank account of Mattie and Leon Shaw for her own use. The evidence leaves little doubt that Celia, clothed with the power of attorney from Mattie, withdrew from Mattie and Leon Shaw’s bank account the $210 and used same for her own benefit. The judgment of the Trial Court recognizing such fact is, in my opinion, unquestionably correct.

LSA-C.C. Art. 1881 provides:

“Voidability of contracts by injured party
“Art. 1881. Engagements made through error, violence, fraud or menace, are not absolutely null, but are voidable by the parties, who have contracted under the influence of such error, fraud, violence or menace, or by the representatives of such parties.” (Emphasis mine.)

For these reasons I am of the opinion the judgment should be affirmed at appellant’s costs and, accordingly, I respectfully dissent.  