Broussard v. LeBlanc

The opinion of the court was delivered, by

Watkins, J.

Plaintiff, a married woman, claiming ownership of the property in dispute, in her own paraphernal right, accompanied with possession, seeks to restrain'the defendants from making a forced .sale thereof, under an execution against one Joseph S. Nunez, in ■whom there is an apparent outstanding title.

An exception of no cause of action was filed, and, by consent of parties, it was referred to the merits to be tried therewith, though judgment was to be separately rendered thereon.

Judgment was thus rendered', the exception sustained and the suit dismissed; and it is from that judgment the plaintiff has appealed.

The sole question we have to consider is, the adequacy of averment in the plaintiff’s petition, if proved, to sustain a judgment.

First, averring her husband’s paraphernal indebtedness to her, her judgment against him on that account, accompanied by a judicial decree of separation of property, and the satisfaction of the money decree by the seizure and adjudication to her in 1868 of the property in suit, she further avers:

“ That in November, 1872, her husband, Demosthenes Nunez, being personally indebted to J.-S. Nunez 4 * * to the amount of §800, and for the sole purpose of securing this debt of his, caused her to sign a document of whose contents she was ignorant at the timo; that she now finds that this document pretencjs to be a sale of the' above described lands to J. S. Nunez; that she never received a .cent from J. S. Nunez .for or on account of said pretended sale; that she signed it through ignorance of its contents, and of her rights in the premises; that said sale is simulated, fradulent and void, being nothing more than an attempt to deprive petitioner of her paraphernal property to pay the debts of her husband, in direct violation of a prohibitory statute,-R. C. C. 2398; that said sale being absolutely null and void, said Nunez has neither right nor title in and to the tract of lands described, and that petitioner is the sole and lawful owner thereof.”

These are the allegations, the sufficiency of which is questioned by defendants’ exception, an exception to which the judge a quo sustained.

The theory entertained by defendants’ counsel is, that the controlling and substantial allegations treat the transaction between Joseph S. Nunez and the plaintiff as a sale, and that it is irrevocable and valid under the principles of law which are announced in Morrow vs. Godcheaux, 41 An. 711; and this is, doubtless, the view which was entertained by the District Judge. In entertaining this view, we are of opinion that our learned brother of the lower court has fallen into error, because a careful analysis of the plaintiffs’ averments do not justify the conclusions of defendants’ counsel, or the court below.

To begin with, the averment is made that, “for the sole purpose of securing this debt of his (her husband) caused her to sign a document of whose contents she was ignorant at the time; that she now finds that this document pretends to be a sale.” This averment is followed by the further statement that there was no cause or consideration therefor, so far as she was concerned, she not having “ received a single cent from Nunez for or on account of said pretended sale.” She further declares “ that said sale is simulated, fraudulent and void, being nothing more than an attempt to deprive petitioner of her paraphernal property to pay the debts■ of her husband, in direct violation of a prohibitory statute.” Then follows the concluding averment, “ that said sale being absolutely null and void, said Nunez has neither right nor title in, and to the tract of land described, and that petitioner is the sole and lawful owner thereof.”

To our thinking, plaintiff’s allegations distinctly disavow anything like a sale of the paraphernal property to Nunez, in payment of her husband’s debt to him, in whole or in part; and they declare, emphatically, that her husband caused her to sign the document in question, for the sole purpose of securing the debt her husband owed Nunez.”

To sustain the defendant’s exception of no cause of action, on the theory of Morrow vs. Godcheaux, the averments of plaintiff should have stated such a case as we found that to be; not such a case as the plaintiff’s was alleged to be. Referring to that ease, we find that the plaintiff had executed an act of sale to the defendant, freely and without any marital influence, or restraint; and that, of the total consideration of $8000, she received $2550 in her own hands, and authorized the expenditure of the residue of $450 for her husband’s account. Under this state of facts, we held the sale valid, and said that Articles 2?.9'7 and 2898 of Revised Oivil Code contained no prohibition against such a sale as that. But the plaintiff in this case does not state such a case as we found that to be. While they are somewhat inartificially drawn, plaintiff’s allegations substantially show the document she executed in favor of Nunez to be of hypothecary or pignorative character, and, considered as such a con-' tract, the case comes clearly within the principle of Krouse vs. Neal, 42 An. 951.

It is, therefore, clear that the exception of no cause of action was improperly sustained. But, notwithstanding the ease was tried on its merits, there was no judgment rendered on the merits, and the plaintiff’s appeal does not bring up the merits for review; hence,, the only judgment we aré competent to render is one reversing the judgment sustaining the defendant’s exception.

It is, therefore, ordered and decreed that the judgment appealed from be annulled and reversed; and it is now ordered and decreed that the cause be remanded and reinstated for a trial on the merits, in conformity with the views herein expressed.