
    (84 South. 362)
    No. 22286.
    PHELPS et al. v. MULHAUPT et al.
    (March 1, 1920.
    Rehearing Denied April 5, 1920.)
    
      (Byllabus by Editorial Staff.)
    
    1. Descent and distribution &wkey;>90(4) — Pa-rol EVIDENCE OF SIMULATED SALES HELD ADMISSIBLE.
    In an action to have declared simulated deeds to property standing in name of defendant, half-brother of plaintiffs, and to have it decreed to belong to succession of their deceased mother, forced heirs are not held within the restrictions of Civ. Code, art. 2275, as to propounding interrogatories on facts and articles concerning real property, but may introduce any other parol proof under Act No. 5 of 1884, amending Rev. Civ. Code, art. 2239, relating to simulated contracts, and by so doing avail themselves of Code Prae. art. 347 et seq., permitting one to so obtain evidence from his adversary and which does not preclude use of other evidence not otherwise inhibited, section 354.
    2. Discovery <&wkey;79 — Record vendor not es-topped to question grantee’s title as SIMULATED, WHERE GRANTEE TESTIFIES SUCH VENDOR’S TITLE SIMULATED.
    In an action to have declared simulated deeds to property standing in name of defendant, half-brother of plaintiffs, and to have it decreed to belong to succession of their deceased mother, one of plaintiffs as record vendor of such defendant was not estopped to attack or deny the import of the conveyance where defendant, required by Code Prac. art. 353, to confess, deny, or state other facts tending to his defense, or closely linked to the fact on which he was questioned by interrogatories, admitted that the deed from their mother to such plaintiff vendor was simulated, even granting that Act No. 5 of 1884, amending Rev. Civ. Code, art. 2239, relating to forced heirs’ right to show by parol evidence of simulated contracts in seeking annulment is inapplicable.
    3. Descent and distribution <&wkey;90(4) — Evidence HELD SUFFICIENT TO SHOW TRANSFERS FROM MOTHER TO SON AND SON TO SON SIMULATED.
    In an action to have declared simulated and void deeds to property standing in name of defendant, half-brother of plaintiffs, and to have it decreed to belong to their deceased mother’s succession, record held to show that such property of mother was placed in the name of one of the plaintiffs, her son, without consideration and for her convenience, and likewise transferred by such plaintiff to defendant so that the transfers were simulated.
    4. Descent and distribution <&wkey;109 — Deed EROM MOTHER TO DAUGHTER HELD DONATION 03? MOTHER’S LAND REQUIRING COLLATION IN HEIR'S’ SUIT TO CANCEL SIMULATED DEEDS.
    Where a mother as tutrix for her minor children at the succession sale of her deceased father’s estate purchased land, paying therefor by her claim against his estate, and she was without authority to purchase it for such minor children, the property was hers, and a grant to a daughter by formal deed is at best only a donation requiring collation in a suit by such mother’s heirs to set aside simulated deeds.
    Appeal from First Judicial District Court, Parish of Caddo; J. R. Land, Judge.
    Suit by Rinaldo A. Phelps and another against Joseph T. Mulhaupt and others. Judgment for plaintiffs, and defendants J. T. and O. P. Mulhaupt appeal, and plaintiffs answered the appeal praying that that part of the judgment requiring them to collate for certain property received be stricken.
    Judgment affirmed;
    Wilkinson, Lewis & Wilkinson, Alexander & Alexander, and Wise, Randolph, Rendall & Ereyer, all of Shreveport, for appellants.
    Blanchard & Smith, N. C. Blanchard, Blanchard, Goldstein & Walker, and J. G. Palmer, all of Shreveport, for appellees.
   DAWKINS, J.

Plaintiffs, Rinaldo A. Phelps and Henry K. Phelps, brought this suit against their half-brother, Joseph T. Mulhaupt, to have declared simulated and void the deeds to certain property standing in his name in the parishes of Caddo and Bossier, and to have it decreed to belong to the succession of Mrs. Nannie T. Mulhaupt, deceased, mother of both plaintiffs and defendants. Plaintiffs also made their sister of the whole blood, Mrs. Ruth Phelps Smyth, and their half-brother Otto P.' Mulhaupt, parties defendant; thus arraying on one side or the other all of the forced heirs and children of the said Mrs. Nannie T. Mul-haupt, deceased. They also asked that the said Joseph T. Mulhaupt be required to account for the proceeds of various portions of the property alleged to have belonged to the common mother and sold by him during the time that it stood in his name, and for rents and revenues. The First National Bank and First Savings Bank & Trust Company, both of Shreveport, La., were made parties garnishee, and served with an injunc-' tion restraining them from paying over or delivering to the said J. T. Mulhaupt any property or funds in their possession, or any one else on his order. The injunction also prohibited the said defendant Mulhaupt from disposing of any of the notes, funds, etc., representing the proceeds of said property dming the pendency of this suit.

Plaintiffs attached to their' petition interrogatories on facts and articles, with reference to said property, and prayed that the said J. T. Mulhaupt be required to answer the same in writing and under oath; the evidence so obtained to be used on the trial of this case. The said defendant answered the said interrogatories, denying that the property in question had been conveyed to him as a matter of form and to be held for his mother, as charged in the petition; but averred that it had been given to him by her, for the benefit of himself, his father, Otto F. Mulhaupt, and his full-brother, Otto P. Mulhaupt, in order to effect a partition of her estate, and to offset donations previously made by her to the three Phelps children, Rinaldo, Henry, and Ruth.

Thereupon, a motion to strike out and take pro confesso certain of the said answers was filed by plaintiffs, and partially sustained by the court below by ordering that all parts thereof with reference to the alleged partition be stricken, and allowing defendant additional time in which to make further answers. Within the period so allowed, further answers were made, all of which was over the objection and exception of counsel for plaintiff.

Defendants banks, garnishees, answered: the First National Bank, that it had only $88.75 standing to the credit of J. T. Mul-haupt, and annexed thereto detailed statement of said account; and the First Savings Bank & Trust Company replied that it held $500 belonging to said defendant, likewise annexing detailed account.

Exceptions of no cause of action were filed by the two Mulhaupt defendants, and, pending a decision thereon by the court, a supplemental and amended petition was filed, over the objection of the defendants. In this amendment, plaintiffs alleged that they were forced heirs of their said mother; that while the property sought to be restored to all the heirs had, at one time, stood in the name of petitioner R. A.- Phelps, it was thus held only at the request and for the convenience of his said mother, and that his subsequent act in conveying it to the said J. T. Mulhaupt was likewise at her instance and request, and, in effect, said act was that of his mother “as fully and completely as if she had actually signed such deeds herself; and that all of said property remained always in her possession, from the time it was acquired by her in 1882 and 1884, until her death in 1914; that any possession which J. T. Mulhaupt may have had was for her; that all of this was so recognized and understood by the said defendant, and an agreement reached looking to a partition of the property equally among all the heirs, which was to have been reduced to writing, but that said defendants Mulhaupt subsequently withdrew from same, with the evident purpose of claiming everything for themselves.” The prayer was substantially In accord with that of the original petition.

The record does not show what the objection was to this amendment, or that it was ever passed upon by the court below, and the matter hás not been pressed here. We know of no reason why the amendment should not be considered part of the pleadings.

The exceptions of no cause of action were overruled.

Defendant J. T. Mulhaupt answered, averring substantially the same facts as had been set out in his answers to the interrogatories on facts and articles; averred that the property was his own, and that plaintiff R. A. Phelps was estopped and debarred from contesting or attacking the deed by which he had conveyed the property to defendant. In the alternative, said defendant averred that if the property did not belong to him, in virtue of the deeds and considerations therein expressed, his said mother, desiring to partition while alive the property which she then owned, transferred and conveyed, or caused to be transferred and conveyed, to the plaintiffs and their sister of the whole blood, Mrs-. Ruth Phelps Smyth, certain properties situated in Caddo parish; and that, to offset said conveyance and donation, she had caused to be conveyed to the said defendant J. T. Mulhaupt the property in question, .for the use of himself, his brother Otto, and his father, Otto F. Mul-haupt. Further, in the alternative, that if he should be required to return said property to his mother’s estate, and to account therefor, that the said Phelps heirs should likewise be required to collate and account.

The prayer was in accordance with the answer, and further that the injunction be dissolved with damages in the sum of $1,-000 as attorney’s fees.

The absentee, Mrs. Ruth Phelps Smyth, made no appearance, notwithstanding formal notice from the curator ad hoe, and the latter filed answer as such, pleading the general issue.

Thereafter, defendant J. T. Mulhaupt amended his answer and averred that he had, through error, alleged that certain property had been transferred by his mother to the plaintiffs and the defendant Ruth Phelps Smyth, when in truth the said conveyances purported to have been made to her as tutrix for them while minors; but that said property was paid for by their said mother out of her individual funds.

With the issues thus presented, the ease was tried before the lower judge, after waiver of the jury, and resulted in a judgment in favor of plaintiffs, decreeing all of the deeds by which the property described in plaintiffs’ petition was placed in the name of J. T. Mulhaupt simulated, and that the said property belonged at all times to the said Mrs. Nannie T. Mulhaupt, and all of it which remained at her death belonged to her estate, and that there should be a settlement and accounting as between all of her said heirs. The Phelps heirs were also held to be due collation and accounting for all property and funds received by them. It was further ordered that the succession of the said Mrs. Nannie T. Mulhaupt be opened, that an inventory and appraisement be made of its property and funds, held by this judgment to belong to her said estate, and that all of her heirs, plaintiffs and defendants, be referred to that proceeding for an adjustment and accounting'as between themselves.

Defendants Joseph T. and Otto P. Mul-haupt have appealed, and plaintiffs have answered the appeal praying that there be stricken from said judgment so much thereof as requires them to collate for the property and revenues known as the Buckalew property, and likewise as to that portion known as “the place up the river.”

Exception of No Cause of Action.

In a long and well-considered written opinion, found in the record, the lower court, as indicated above, decided the issues raised by this exception adversely to the defendants. The main contention, in the court below, on this point, it would appear from the judge’s opinion, was that parol evidence was not admissible to prove the simulated character of the acts by which the defendant Joseph T. Mulhaupt became vested with the record title, and that the plaintiffs were bound by the answers to the interrogatories on facts and articles. However, as to all of the other heirs, with the possible exception of Rinaldo A. Phelps, such testimony, in our opinion, was clearly admissible under the provisions of Act No. 5 of 1884, amending article 2239 of the Revised Civil Code so as to read as follows:

“Article 2239 (2236). Counter letters can have no effect against creditors or bona fide purchasers; they are valid as to all others; but forced heirs shall have the same right to annul absolutely and by parol evidence the simulated contracts of those from whom they inherit, and shall not be restricted to the legitimate.”

See Wells v. Goss, 110 La. 348, 34 South. 470.

So that, in an action of the kind now before us, forced heirs are not held within the restrictions imposed by article 2275 of the Civil Code as to the propounding of interrogatories on facts and articles concerning real property, but may introduce any other parol proof to make out their case. Hence, in adopting the course pursued in this case, the plaintiffs were merely availing themselves of the provisions of articles 347 et seq. of the Code of Practice, which permit one to obtain such evidence as he may from his adversary in this manner, to be used on the trial, and which course does not preclude the use of other evidence, provided there be no-other inhibition in the law against the same. C. P. 354.

As to the plaintiff Rinaldo A. Phelps, defendants averred in their answer that, haying been the record vendor in the acts by which the conveyances were made to J. T. Mulhanpt of the property in dispute, the said Phelps was-estopped to attack or deny the import thereof; but, in the answers to the interrogatories on facts and articles, the said Mulhaupt had already admitted that the property in question had been placed in the name of the said Phelps by the mother for her own convenience, and that it had been conveyed to the said Mulhaupt at her instance. It is true that he claimed it was done for the purpose of effecting a partition, but the conclusion is none the less clear from these answers that he admitted the property had belonged to his mother, and that Phelps was the mere instrumentality through which the conveyance was made. It is true that article 353 of the Code of Practice provides that the party so interrogated shall confess or deny the fact' so inquired about, but he is also permitted to state any other facts tending to his defense, provided they be closely linked to the fact on which he has been questioned. This he attempted to do in saying that his mother had caused the property to be transferred to him for the purpose of effecting a partition, and in support of the answer which he had made that he did not hold and had not held the same for her; regardless of whether or not he might be permitted, by such proof, to show a donation or partition, which the plaintiffs claim would have the effect of proving an act entirely different from that which it purports on its face to be. We think these admissions by J. T. Mulhaupt have removed whatever objection there might have been to the attack of R. A. Phelps upon the deeds from himself to Mulhaupt, even granting that the article 2239, as amended by the Act No. 5 of 1884, does not apply in a case of this kind, so as to overcome the estoppel which might otherwise operate as against the said Phelps.

For these reasons, we think the exceptions of no cause of action were properly overruled.

On the Merits.

Mrs. Nannie T. Mulhaupt, deceased, was twice married; the first time to Rinaldo A. Phelps, Sr., some time during the year 1866, and the second, to Otto E. Mulhaupt in 1879. Of the first marriage, there were born three children, to wit, Ruth, Rinaldo A., Jr., and Henry K. Phelps, and whose father died in 1873, leaving little or no estate. The mother qualified as their natural tutrix, and on her marriage to Mulhaupt he became cotutor. Of the second marriage, two children were born, to wit, Joseph T. and Otto P. Mulhaupt. »

In 1886, and prior to the birth of the Mul-haupt children, Joseph Taylor, father of Mrs. Nannie T. Mulhaupt, deceased, and maternal grandfather of all of the plaintiffs and defendants, died in the city of Shreveport, leaving considerable real property, both in the state of Louisiana and in the state of Texas. By last will, after providing certain small special legacies for certain of his children, he bequeathed the residue of his estate to the three Phelps grandchildren above named, and made the said Mrs. Nannie T. Mulhaupt executrix of said will without bond. This will was probated in both states, and on her account as executrix Mrs. Mul-haupt made a claim against her said father’s estate for the sum of $8,000 alleged to have been for expenses, etc., of her said father prior to his death, and was proceeding to have the property in Louisiana sold for its payment. Whereupon, certain other heirs of the said Joseph Taylor appeared and opposed said account and sale upon the ground that said amount was not due or owing to the executrix, and thereafter a compromise was effected hy which she relinquished the claims of herself and children to certain of the Texas property, and the proceeding in Louisiana was permitted to continue. The sale was made, and portions of the property were bought in by her individually, and others in her name as tutrix for the Phelps minors. That bought in by her as tutrix was as follows:

(1) A two-thirds interest in part of lot 2 of block 58 with improvements thereon; also, lot 16 and part of 15 in block 62, with improvements thereon — all in the city of Shreveport, La.

(2) Also, all of the N. W. % of N. W. % and S. E. *4 of N. W. % and fractional S. W. % of section 12, township 18, range 14, and fractional W. % of N. E. % of section 13, township 18, range 14 west.

That which she bought in her own name was as follows: '

A one-half interest in lot 11, of 10 acres; lot No. 6 in city of Shreveport, La.; the E. y2 of section 13, township 17, range 13, and

S. W. % of section 18, township 17, range 12 west, containing 480 acres.

Thereafter, on April 6, 1880, Mrs. Nannie T. Mulhaupt appeared individually, and authorized by her husband, Otto P. Mulhaupt, and sold to her daughter, Ruth A. Phelps, the property described in item No. 1 above as having been bought by her as tutrix for the Phelps minors, and mentioned in the record as the “Buckalew.property.” The recited consideration was $15 cash, and the assumption of a mortgage in favor of the Shreveport Mutual Building Association for $5,000. On January 25, 1914, Rinaldo A. and Henry K. Phelps and Mrs. Ruth Phelps Smyth conveyed this same property to A. C., W. C., and F. 0. Buckalew.

The property described in item No. 2 above, as having been bought by Mrs. Nannie T. Mulhaupt, as tutrix for the minors Phelps, at the succession sale of her father and their grandfather, and referred to in the record as “the place up the river,” appears to have continued to stand on the record in that manner; but, according to the evidence in'the record, the greater .part of it has caved into the Red river.

The building on lot No. 16 and part of lot 15 in block No. 62, also described in item No. 1, above, and known as the warehouse property or Enders Furniture Factory on the levee, was burned, the insurance, amounting to some $3,000, was collected by Mrs. Nannie T. Mulhaupt, and the land subsequently expropriated by one of the railroads leading into Shreveport, and from which the said Mrs. Mulhaupt also realized another $3,000.

On December 20, 1886, Mrs. Nannie T. Mul-haupt, aided and authorized by her husband, Otto F. Mulhaupt, purchased from Mattie E. and Eva Watson the following described property, to wit:

All that portion of the Northwest quarter of section 11, township 17, range 14, .Caddo parish, La., which lies between the Vicksburg, Shreveport & Pacific Railroad, and the Texas Road (wagon road), containing 100 acres, more or less.

■Thereafter, through various transfers, such as sales for taxes and redemptions therefrom, the said Mrs. Nannie T. Mul-haupt finally caused to be placed in the name of her eldest son, the plaintiff Rinaldo A. Phelps, the property last above described, together with that situated in Bossier parish, amounting to 480 acres, and described in item No. 2 above, as having been purchased by her in her own name at the succession sale of her father, Joseph Taylor.

On May 3, 1900, she caused the said Rinal-do A. Phelps to' transfer the said Bossier parish property to his half-brother, defendant Joseph T. Mulhaupt, for a recited consideration of $3,500 cash. And on October 31, 1901, she likewise caused the said Phelps to convey to the said Mulhaupt the 100 acres of land which she had bought on December 20, 1S86, lying between the Vicksburg, Shreveport & Pacific Kailroad and the Texas Road; the consideration expressed in the deed being $5,000 cash, and the balance represented by a mortgage for the same amount given by the said Phelps to one Abe Meyer.

As a matter of fact, nothing was paid by Mulhaupt to Phelps for the Bossier parish property, as was admitted in the answers to the interrogatories on facts and articles; neither was the $5,000 cash mentioned in the conveyance of the 100-acre tract paid, and the $5,000 mortgage resting thereon at the time it was placed in his name was subsequently taken up by the execution of another on the same property.

It is these last two pieces of property, that is, the Bossier parish tract of 4S0 acres, and the 100-acre or “Idlewild” place, that the plaintiffs seek, in this suit, to have declared the property of their mother’s succession.

After taking the “Idlewild” place of approximately 100 acres in his name, Joseph T. Mulhaupt sold off some 60 acres thereof, for a total price of $74,000, and there still remains approximately 40 acres unsold. He, together with his brother Otto, also farmed the Bossier parish property, up. to the date of his mother’s death.

The record shows beyond any reasonable doubt that the placing of this property, first in the name of her son Rinaldo A. Phelps, and later in that of the defendant Joseph T. Mulhaupt, was a mere matter of form and for the convenience of the said Mrs. Nannie -T. Mulhaupt; and that it was never intended that it should actually belong to either of them. It was so treated and understood by Mrs. Mulhaupt and all of her heirs, during her lifetime, and, in fact, she continued to remain in possession and control up to the time of her death. The record does not sustain the contention that it was conveyed to J. T. Mulhaupt for the purpose Of'making a partition, but that merely because Rinaldo A. Phelps, in whose name it stood at the time, was about to get married, she wanted it placed in the name of the next oldest son, who was then unmarried and living at home, so that the same could be handled by her more conveniently. Under these circumstances, the paper title which he held was a simulation, pure and simple, and the said property really belonged to her at her death, and thereafter passed to her succession. The judgment of the lower court holding that the Bossier parish property and the Idlewild place belonged to the succession of Mrs. Nannie T. Mulhaupt, and that the defendant Joseph T. Mulhaupt should account for the proceeds of the portion which was sold and for the rents and revenues, was therefore correct.

It is also reasonably clear from the record that the property known as the “Buckalew property” and the “place up the river” purchased in the name of Mrs. Nannie T. Mulhaupt, as tutrix for the minors Ruth A., Rinaldo A., and Henry K. Phelps, at the succession sale of Joseph Taylor, deceased, was paid for by the claim of the said Mrs. Mulhaupt against the estate of her said father, and that she had no power or authority to buy it for her said minor children. The purchase as to them was therefore without authority. R. C. C. 353; Smith’s Heirs v. Johnston, 110 La. 564, 34 South. 677. As a matter of fact, Mrs. Mulhaupt and her said children always treated these two pieces of property as belonging to the said mother, she collecting the rents and revenues, just as in the case of the other property. It is true that she conveyed the “Buckalew property” to her daughter, Ruth, by formal deed in 18S9, but nothing was paid therefor by her said daughter, and the matter at best can be treated in no other way than as a donation; hence collation is due therefor.

It is stated in plaintiffs’ brief that the "Buekalew property” was acquired by Mrs. Mulhaupt from an entirely different source from that of the other property purchased at the succession sale of her father, but we have been unable to find anything in the record to sustain this assertion.

We conclude, therefore, that the finding of the lower court with respect to the properties which the appellees have asked in their answer to the appeal be stricken from the judgment below was correct.

We know of no better way of disposing of the many claims and counterclaims of the plaintiffs and defendants herein, than to refer them to an administration of the succession of their mother, as was done by the judgment of the district judge.

Eor the reasons assigned, the judgment appealed from is affirmed, at the cost of the appellant.  