Reed v. Succession of Gibson , 185 La. 821 ( 1936 )

The relator alleges that, on the 10th day of October, 1935, Mrs. Martha M. Reed issued executory process and caused certain described real estate belonging to the succession of Mrs. Matilda B. Gibson to be seized thereunder and advertised for sale, to enforce the payment of a certain promissory note for $1,200, dated December 30, 1926, made by the late Matilda B. Gibson, to her own order and by her indorsed, payable on or before three years after date, bearing interest at the rate of 8 per cent. per annum from date and paraphed "Ne Varietur" by Joseph Laitenschlager, notary public, to identify it with an act of mortgage passed before said notary on December 30, 1926.

It is alleged that said note was prescribed, on its face, approximately nine months before executory process was issued thereon. It is alleged that executory process issued on said note more than one year after the death of its maker. It is alleged that relator petitioned the civil district court for the parish of Orleans for a rule upon Mrs. Martha M. Reed and the civil sheriff of said parish, to show cause why a writ of injunction should not issue, enjoining and restraining the said sale.

The rule issued, as prayed for, and, in due course, it was tried. On the trial thereof, counsel for Mrs. Martha M. Reed, the plaintiff in the executory proceeding, offered and tendered oral testimony to prove that prescription on the note upon which executory process issued had been interrupted by verbal acknowledgments of the maker thereof, at various times, prior to her death. This proffered testimony was promptly objected to, but the objection was overruled, the testimony was admitted, and, on March 19, 1936, the following judgment was rendered:

"It is now ordered, adjudged and decreed that the rule nisi be recalled, and that the preliminary injunction herein prayed for be and the same is hereby denied, at the costs of the plaintiff in injunction."

A rehearing was applied for and overruled and relator applied to this court for writs of mandamus and prohibition. A writ of certiorari and rule to show cause, coupled with a stay order, issued and, in response thereto, the record has been sent up, the trial judge and Mrs. Martha M. Reed, respondents, have filed their returns. Mrs. Reed, respondent, has filed an opposition to the writ, and relator has filed an answer to the respondents' returns. The record being thus made up, the case is submitted for our consideration and decision.

This is the third time this matter has been before us. Our supervisory powers were first invoked by relator in an effort to enforce the trial of the case on the merits. Later, a writ of mandamus was sought to compel the granting of an injunction. At that time we found that the relator's application for relief was premature, and it was denied for that reason.

The trial judge's return reviews the entire record, which consists, in part, of the record in the suit of Robert Lewis and Mrs. Lenora Lewis Prosper v. Mrs. Martha M. Reed, No. 207011 of the docket of the civil district court.

The return of Mrs. Martha M. Reed merely adopts and submits, as her return, the return of the trial judge.

Mrs. Martha M. Reed, plaintiff in the foreclosure proceedings in the civil district court, and respondent in this proceeding, contends that prescription of the note foreclosed upon was interrupted, first, by payments thereon; second, by the maker's verbal acknowledgment of the debt; and, third, by the suit of Robert Lewis and Mrs. Lenora Lewis Prosper v. Mrs. Martha M. Reed, No. 207011 of the docket of the civil district court.

It is shown that the foreclosure proceedings were filed more than one year after the death of the maker of the note. It is shown that the note was prescribed, on its face, when the foreclosure proceedings were filed. It is shown that the suit of Robert Lewis and Mrs. Lenora Lewis Prosper v. Mrs. Martha M. Reed was filed after the death of Mrs. Matilda B. Gibson, the maker of the note foreclosed upon, but before the succession of the deceased was opened, and by mere presumptive heirs of the deceased. It is shown that, when judgment in the suit of said presumptive heirs against Mrs. Reed was rendered, the note, upon which foreclosure proceedings were subsequently filed, had previously prescribed.

The learned trial judge, in his return, says:

"I am of the opinion that, even if parole evidence is not admissible in this case to prove payments actually made upon this note, and admissions of the amount represented by the note, then prescription still was interrupted by the fact that when Robert Lewis, * * * and his sister, Mrs. Lenora Lewis Prosper, filed their suit in proceedings No. 207,011 of the docket of the Civil District Court, on April 17, 1934, that the filing of that suit was an action filed upon the indebtedness due by Mrs. Lewis to the plaintiff in the foreclosure proceedings. That suit was brought within two months of the date of Mrs. Lewis' death, i.e., March 2d 1934. That suit was allotted to my division of the Civil District Court, and the purpose of the suit was to have this $1200.00 mortgage note, the foreclosure of which is attempted to be restrained, declared invalid, because it was alleged that the note had been secured through fraud, and without consideration. Mrs. Reed, defendant in that suit, and plaintiff in foreclosure proceedings, met this issue, and, on April 3rd, 1935, I decided that cause in her favor, holding that the mortgage note now foreclosed upon was not secured through fraud, but had been secured legitimately and for a valuable consideration. No appeal was taken from this decision. * * * It is my opinion that the suit brought by Robert Lewis and his sister, Mrs. Lenora Lewis Prosper, against Mrs. Reed, was a suit upon the indebtedness, and the bringing of that suit interrupted prescription. * * * I further believe that as long as that suit was pending prescription was interrupted." (It would appear that the district judge, in his opinion, has twice inadvertently substituted the name of Mrs. Lewis for that of the decedent, Mrs. Matilda B. Gibson.)

The learned trial judge cites both case and text law in support of his conclusion. The authorities cited would be unanswerable if Robert Lewis and Mrs. Lenora Lewis Prosper were the makers of the note foreclosed upon and, as such, the debtors of Mrs. Martha M. Reed, or, possibly, if the plaintiffs in their said suit were acting as the legal representatives of the succession of the deceased debtor, but as they were neither debtors of Mrs. Reed, nor representing the succession of the deceased debtor, the cited authorities do not apply.

Prior to the passage of Act No. 207 of 1906 it was not possible to revive the prescribed debt of a deceased person except by written evidence. Act No. 207 of 1906 provided that this could be done by credible corroborating oral testimony if the action upon the alleged indebtedness was brought within twelve months after the death of the debtor. This act was amended by Act No. 11 of 1926. Omitting the title and the repealing clause, the act consists of two sections, which have been the law of this state since June 17, 1926. They are as follows:

"Section 1. Be it enacted by the Legislature of Louisiana, That Parol evidence shall be incompetent and inadmissible to prove any debt or liability upon the part of a party deceased, if a suit upon the asserted indebtedness or liability shall have been brought more than twelve (12) months after the death of the deceased.

"Section 2. That parole evidence shall be incompetent and inadmissible to prove any debt or liability upon the part of a party deceased, if a suit upon the asserted indebtedness or liability shall have been brought within a delay of twelve (12) months after the death of the deceased, unless it consists of the testimony of at least one credible witness of good moral character, besides the plaintiff; or unless it be to corroborate a written acknowledgment or a promise to pay, signed by the debtor."

Section 1 of Act No. 11 of 1926 is plain. It provides that no litigant can prove any debt or liability of a deceased person by parol evidence, no matter how many credible witnesses may be offered for that purpose, if his suit upon the asserted indebtedness is filed more than one year after the death of the deceased.

As we have stated supra, no accredited representative of the succession of the deceased maker of the note, Mrs. Matilda B. Gibson, is charged, or is chargeable, with obstructing or delaying Mrs. Martha M. Reed in timely asserting her legal rights in the premises, and, therefore, the independent suit of the presumptive heirs filed before the opening of the succession, and to which the succession never became a party, cannot be held to have interrupted prescription on the note.

For the foregoing reasons, the writ issued herein is perpetuated; the ruling upon the objection to the admissibility of oral testimony to prove interruption of prescription was erroneous, and is now reversed; and it is ordered that alternative writs of mandamus and prohibition, as prayed for in relator's application, be and they are hereby granted and ordered issued herein. It is further ordered that the costs of this proceeding be paid by Mrs. Martha M. Reed.

On Rehearing.