Vinson v. Succession of Tompkins , 25 La. Ann. 437 ( 1873 )

Howell, J.

The plaintiff alleges that having become embarrassed in his pecuniary affairs, and having had, for his own safety, to foreclose-several mortgages held by him, among others one against A. M. Wad-dill, he caused the land of said Waddill, when sold by the sheriff, to be hid off by, and the title thereto, to put in the name of his nephew, Jackson B. Tompkins, with the understanding that so scon as the petitioner became unembarrassed, the said land should be reconveyed to him by the said Tompkins, who had no means and was merely interposed for the protection of the plaintiff. But before this was accomplished Tompkins died, and he now sues the widow and tutrix to have said title conveyed to him. The widow and tutrix answers that of her own knowledge she knows nothing- of the alleged facts, except that her husband never had the amount of money for which the said land was hid off by him, and that he would have rendered any reasonable service to his uncle, the plaintiff, to help him through his temporary embarrassment, and so she admits the facts and offers no objections to-the court rendering the judgment prayed for, but asked that plaintiff he ordered to refund the taxes paid by her.

Judgment was rendered declaring the sale to Tompkins to be simulated and reconveying the title to plaintiff, and condemning him to refund whatever taxes the widow paid and to pay costs, reserving the rights of the minor, whatever they may be. The plaintiff appealed from that part of the judgment which reserved the rights of the minor.

It is true the tutrix could make no admission which could bind the minor, but as the law allows such suits, and the proof of simulation by a particular kind of evidence, which it seems may be, but was not adduced by the plaintiff, we have concluded to allow him an opportunity to furnish it, and not to force him to rest under a cloud upon his title, which it is probable from the facts in the record should be removed.

It is therefore ordered that the portion of the judgment herein which “reserves the rights of the minor Susie May, whatever they may be,” be reversed, and this cause remanded to the lower court for the purpose of allowing the plaintiff to introduce legal evidence as against the said minor’s rights, if any she have, to the property in question. Costs of appeal to be paid by the tutrix.