
    Cornelius McBRIDE et al., Plaintiffs-Appellants, v. William McBRIDE, Defendant-Appellee.
    No. 5035.
    Court of Appeal of Louisiana. First Circuit.
    May 31, 1960.
    Rehearing Denied June 29, 1960.
    Edwards & Edwards, Crowley, for appellant.
    Bruner, Mayeux & Landry, Crowley, for appellee.
    Before TATE, FRUGÉ and SAVOY, JJ.
   SAVOY, Judge ad hoc.

This suit was instituted by plaintiffs as children and grandchildren of Cornelius McBride against William McBride, a son of Cornelius McBride, and Annie McBride, a sister, to set aside a sale dated January 9, 1947, wherein the said Cornelius McBride purported to transfer certain real estate in Acadia Parish to William McBride. The deed or alleged sale contained the following recital:

“In making this deed to Vendee, it is understood and mutually agreed, that Vendors retain the usufruct of the above described property to be used and enjoyed by them during the balance of their natural lives and at the death of the survivor of them, (Vendors) this deed to operate as a complete transfer of said property to said Vendee, his heirs and assigns.”

Plaintiffs contend that the purported act of sale mentioned above is a donation in disguise and also a donation omnium bon-orum.

Alternatively, plaintiffs allege that should the Court fail to find that the alleged act is a donation in disguise or a simulation, then they allege that since the said Cornelius McBride reserved the right of usufructuary to himself for the remainder of his life that they be entitled to reserve their right of action against the said defendant, William McBride, for the value of said usufructuary’s interest in said land.

Defendants filed a general denial asking that the deed be reformed to delete the reservation as to the usufruct, and in the alternative asked for a money judgment against plaintiff for money advanced by defendant to Cornelius McBride. The lower court dismissed plaintiffs’ suit. This appeal followed.

Annie McBride was made a party to the suit for the reason that she refused to join with plaintiffs therein.

Since the sale mentioned above, both Cornelius McBride and his wife, Elizabeth Daigle McBride, have departed this life, and the plaintiffs and defendants are the sole heirs of said deceased parties.

In the case of Olivier’s Minor Children v. Olivier, 215 La. 412, 40 So.2d 803, 804, the Supreme Court had this to say:

“Under the express provisions of the Revised Civil Code, ‘The sales of immovable property made by parents to their children, may be attacked by the forced heirs, as containing a do- . nation in disguise, if the latter can prove that no price has been paid, or that the price was below one-fourth of the real value of the immovable sold, at the time of the sale’ (Article 2444), but ‘where the thing sold remains in the possession of the seller, because he has reserved to himself the usu-fruct, or retains possession by a precarious title, there is reason 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.’ Article 2480.”

Under the above provisions of law, namely Article 2480 of the LSA-Civil Code, since the said Cornelius McBride reserved the usufruct to himself, there is a presumption that the sale herein was simulated, and the burden of proof shifts to William McBride to show that sufficient consideration to maintain said sale was given to his father, Cornelius McBride.

While the act of sale was passed before Lloyd Franques, a Notary Public in Acadia Parish, testimony reveals that the instrument in question was prepared by a person versed in the law of this state.

The act of sale recites that a cash consideration of $2,500 was passed from the vendee to the vendor at the time of the sale, however, the defendant testified that he had loaned his father $1,400 and had taken a mortgage on the property, and for the balance of the purchase price that he had given his father a check that was to be paid later in the year.

After reading the record in its entirety, this Court is of the opinion that the defendant has not discharged the burden placed on him to show an adequate consideration for the transfer of said property. While it is true that the act of mortgage from Cornelius McBride to William McBride was recorded in the Mortgage Records of Acadia Parish, still there is no showing in the record that William McBride ever gave the sum of $1,400 mentioned in the mortgage to his father, nor is there any evidence in the record that the remaining price for said land has been paid.

It appears to the Court that the reason that the transfer of the property from Cornelius McBride to William McBride was in the form of a sale was for the reason that a donation by the father to the son would have been null and void under the provisions of Article 1497 of the LSA-Civil Code, which provides as follows:

“Donation inter vivos — Restriction on amount.- — -The donation inter vivos shall in no case divest the donor of all his property; he must reserve to himself enough for subsistence; if he does not do it, the donation is null for the whole.”

The evidence shows that the property in question was the only property owned by Cornelius McBride at the time of the transfer to the defendant.

Another possible reason for making the act of transfer in the form of a deed rather than a donation was because according to Article 1533 of the LSA-Civil Code, the donor is permitted to dispose, for the advantage of any other person, of the enjoyment or usufruct of the immovable property given, but can not reserve it for himself. The law considers the tradition or delivery of immovables, as always accompanying the public act, which transfers the property. Article 2479, LSA-Civil Code. This is true whether the act be a sale or a dation en paiement, Warden et al. v. Porter et al., 228 La. 27, 81 So.2d 707, and cases cited therein.

It is significant to the Court that shortly after the transfer from Cornelius McBride to defendant that the said Cornelius McBride was placed on the old age welfare rolls of this state. The Court is familiar with the welfare operations and it is well known that if a person owns property that he will not be placed on the welfare rolls or given old age assistance. This is probably another reason why the transfer of the property was made.

Defendant in his brief has cited the case of Blackman v. Brown, 155 La. 959, 99 So. 711. This case deals solely with Article 2444, whereas in the case at bar we are dealing with Article 2444 and 2480 of the LSA-Civil Code.

The cases of Brown, Administrator v. Brown, 30 La.Ann. 966, and First National Bank of Shreveport v. Pierson et al., 184 La. 787, 167 So. 442, are not applicable because the facts are different in those cases from the one in the case at bar.

The cases of Jones v. Dietrich et al., La.App., 186 So. 881, and Citizens Bank and Trust Company v. Willis, 183 La. 127, 162 So. 822, are not applicable for in this case the defendant did not agree to the support of his parents as long as they should live.

By stipulation between the parties, it was agreed that William McBride had advanced the funeral expenses for the funeral of his father. This is a claim against the separate estate of the father. Succession of Lewis, La.App., 12 So.2d 7. The Court accordingly reserves the right of the defendant, William McBride, to take such action as he may deem necessary against the separate estate of his father to recover the amount of funeral expenses and for the burial plot.

Perhaps the defendant was more attentive to his father than were the other children, and while it might be true that defendant may have given his father something of value during his lifetime, still this cannot be a basis for a consideration of the transfer in question, for anything given by the son to the father is presumed to be gratuitous. It is also well recognized that some parents favor or like some children better than others in the family.

For the reasons assigned, the judgment of the district court is hereby reversed, annulled and set aside, and judgment is hereby rendered in favor of plaintiffs and against defendants, decreeing the purported act of sale dated January 9, 1947, and recorded in Conveyance Book 0-8, Page 378, Conveyance Records of Acadia Parish, to be null and void, and the plaintiffs and defendants are hereby recognized to be the owners of the following described property, situated in the Parish of Acadia, to-wit:

That certain tract or parcel of agricultural land containing thirty-five (35) arpents, more or less, situated in Acadia Parish, Louisiana, about two and one-half (2^4) miles Northwest of the Town of Church Point, Louisiana, bounded on the North by land of Linus Richard, East by land of Daniel Elkins, South and Southwest by land of Lloyd Franques. It being the same land acquired by Cornelius McBride from the Estate of Julia Latiolais, Colligan and Daigle about the year 1920. Also with all buildings and improvements situated thereon,

in the following proportions, to-wit:

Cornelius McBride-9/18ths
Agnes McBride- 1 / 18th
Eula McBride--— l/18th
Josephine McBride- l/18th
Lydiana McBride- l/18th
Francis McBride- l/18th
William McBride.-.l/18th
Annie McBride- l/18th
Bertrand McBride- l/18th
Ala Mae McBride- l/36th
Mary Lee McBride- l/36th

Defendant, William McBride, to pay all costs of court in the lower court and in this court.

Judgment reversed.

TATE, Judge

(dissenting).

With the utmost deference for my learned and conscientious brethren, I must respectfully dissent from the majority’s reversal of the trial court.

An amplification of the uncontradicted facts will show, I believe, that the majority has set aside a duly-recorded 1943 mortgage and 1947 sale simply upon an unsubstantiated suspicion that they were simulations, although the instruments were not questioned by any of the parties until this suit was filed in 19S7 and although the sworn evidence in this record reflects without contradiction that the land was sold by the parents for an adequate consideration to their son who lived with them, worked the place for them, and paid all their expenses '(including substantial medical and funeral bills) without contribution from any of his eight brothers and sisters.

Under similar circumstances, our Supreme Court in Blackman v. Brown, 155 La. 959, at page 962, 99 So. 711, at page 712, refused to annul a sale as a donation in disguise, the court declaring: “ * * * evidence which merely casts suspicion is insufficient to cause the court to take the property from one man and give it to another * * * The law does not favor actions by forced heirs to undo transactions of their ancestors as done in fraud of their rights. Such actions can only succeed where the proof adduced in support thereof is convincing, if not irresistible.”

To recapitulate the facts: On January 9, 1947, Cornelius McBride (then aged 78 or 79, Tr. 55) and his wife sold their 35-arpent tract to their son, William (the defendant herein) for the stated consideration of $2,-500 cash in hand paid, which price the evidence reflects to be the true value of the land at the time. The deed also contained a reservation of the usufruct in favor of the vendors. The parties were all illiterate and signed by their marks.

As the defendant William alleged in his pleadings and as proved by the evidence, the true consideration was not the payment of $2,500.00 cash. Evidence correctly admitted by the trial court showed that the true consideration was: (a) the cancellation of a recorded mortgage dated November 24, 1943 in the amount of $1,400, bearing 8% interest from date, executed by the parents in favor of William, the defendant; and (b) the subsequent payment of $1,000 in cash by William to his father, after the crops of the year were completed.

Uncontradicted evidence was adduced to support the validity of this consideration, as well as of the 1943 mortgage which was cancelled as part of the consideration for the 1947 sale.

As to the mortgage, Lloyd Franques, the notary public before whom both the 1943 mortgage and 1947 sale were executed, stated that about three or four years before the sale, the father McBride had come to him to prepare a sale of the land to William to pay a debt he owed his son. At that time, the notary had persuaded the father that it would be preferable to execute a mortgage in William’s favor to secure the debt. The land was then encumbered by an outstanding Federal Land Bank mortgage of initial face value of $700, upon which some payments had been made by William and some by the parents. The balance due upon this was paid through the notary by William at the time the mortgage in favor of William was executed. A representative of the Federal Land Bank testified that the balance of $357.18 due on the mortgage was paid by Mr. Franquez on November 26, 1943 (that is, two days after the date of the mortgage), and this prior mortgage was then cancelled.

Bertrand McBride, a brother and a plainr tiff herein, testified that about thirteen years before the 1958 trial, his father Cornelius had offered to sell him the property, since he then owed William about $1,300. The witness advised his father to sell the land to William, since the debt was owed to William.

The defendant William himself testified, to the same effect, that over three or four years prior to 1943 he had advanced his aged parents, for whom he worked the place and with whom he lived, approximately eleven hundred dollars, and that the 1943 mortgage was passed to secure this amount, as well as the balance of the Federal Land Bank mortgage and the taxes which William also paid at the time the 1943 mortgage to him was executed.

No evidence was introduced to contradict the validity of this 1943 mortgage. The only witness testifying in favor of the plaintiffs (including of the eight living brothers and sisters, six of whom are plaintiffs herein) was Francis Bertrand, a brother, with whose family the aged father (then 88 or 89 years of age) was living at the time this suit was filed in 1957, on the eve of the father’s death a little later that year and immediately prior to the trial below. This witness’ only reason for believing that defendant William did not pay their father for the land was that “Because he [William] was like me, he didn’t have any money.” (Tr. 94.)

(As to William’s lack of money, the evidence indicates that this defendant was single and without family expenses and that prior to the sale (afterwards he kept the entire crop proceeds) he had worked the place on shares, receiving one-third of the crop. Francis and his family moved to the place with William and their father after the mother died in 1950, and Francis admitted that he made the crop on the place in 1951 and gave William one-third of the crop, keeping the remaining two-thirds for himself as tenant; the crop for the year 1951 amounting to $2,500. Tr. 90, 94. Aside from indicating the source of William’s funds, it is difficult to reconcile Francis’ recognition of William’s ownership in 1951, immediately after the sale, with his present claim some eight years later that the sale was simulated. That William was a thrifty person is additionally indicated by the circumstance that it is stipulated that William, and William alone of the children, paid the entire funeral expenses of $439.80 for his father following the latter’s death on September 15, 1957 (after the filing of this suit), and also the entire last medical and funeral expenses of his mother in the amount of $810.87 following her death on March 11,1950. (Tr. 45,66.)

I do not wish to labor the point further, but it is equally well proved without contradiction that William paid his father $1,-000 following the sale of the 1947 crops. The potato-crop purchaser and a plaintiff brother corroborate William’s testimony to this effect, which is additionally corroborated by the notary’s testimony that at the time the sale was executed William gave his father a check or note for this amount to be paid when the crops were made.

To set aside the sale as a simulation, when the defendant has proved the consideration without any contradiction, the majority seems to me to ignore Civil Code Article 2444 and the jurisprudence thereunder, as well as all of the equities of the present case. I am completely unable to see how the 1943 mortgage, the consideration for which is so fully proved, can be ignored simply upon a suspicion that it is a simulation. To hold that the defendant had to prove more fully than he did at the 1958 trial (some fourteen years later) the consideration for the 1943 mortgage casts an impossible burden, one that might even tax a banker keeping complete records for a reasonable length of time, to say nothing of this illiterate and thrifty farm laborer who is being divested by the majority’s decree of his earnings and investment, unquestioned for over ten years prior to the filing of this suit.

One further aspect gives me great concern. By reconventional demand, the defendant alternatively prays for return of certain sums expended by him, in the event the court should set aside the sale. For instance, it is uncontested that he had placed a tenant house on the land at a cost of $800 about three years before the suit. (Tr. 54-55.) This demand is dismissed by us. Likewise, it is stipulated that William had paid funeral expenses of approximately twelve hundred dollars for his parents (Tr. 45, 66), which funeral expenses are a privilege upon the immovable property of the decedents even without the necessity of recordation and which do not prescribe by three years (C.C. Arts. 3252, 3276; Sanders v. Sanders, La.App. 1 Cir., 85 So.2d 61); yet the majority rejects the defendant’s alternative demand by way of reconvention for recognition of his mother’s funeral expenses, which (as well as the father’s funeral expenses) are a valid privilege upon the land if indeed the sale is a nullity.

For the reasons above-stated, and because I think that if the majority opinion stands grave injustice will result, I must respectfully dissent. 
      
      . See LSA-Civil Code, Article 1900: “If the cause expressed in the consideration should be one that does not exist, yet the contract cannot be invalidated, if the party can show the existence of a true and sufficient consideration.” Collins v. Brunet, 239 La. 402, 118 So.2d 454.
     
      
      . “The sales of immovable property made by parents to their children, may be attacked by the forced heirs, as containing a donation in disguise, if the latter can prove that no price has been paid, or that the price was below one-fourth of the real value of the immovable sold, at the time of the sale.” (Italics mine.)
     