Ruddock Orleans Cypress Co. v. deLuppe , 4 Teiss. 306 ( 1907 )

DUFOUR, J.

The plaintiff has appealed from a judgment sustaining an exception of no cause of action to a petition which, in substance, makes the following allegations: That petitioner is a judgment creditor of- Charles de Luppe and that the latter refuses to pay such judgment and has no property stand-* ing in his name against which execution can issue.

That certain described real estate is in reality and fact the property of de Luppe and belongs to him alone.

That said property, prior to her death was by de Luppe’S mother transferred to his daughter, Marie, by Notarial act duly registered. That the alleged ocnsideration stated in said sale of $1300 in cash and the assumption of a mortgage note of $150 was not the true consideration and that no cash whatsoever was paid, but that said property was transferred as aforesaid for the sole purpose of attempting to evade the creditors of de Luppe and was in reality transferred for account and for the benefit of de Luppe and belongs to him.

That the said Cl a h s de . ■ ' . v ■ hies in said property and has had and still has full o ¡u ¡ 1 red abs< Inte control thereof, it. being well understood lilvcen himself and his daughter that she holds title to the same nominally, for his account and subject in all respects to his control and possession. The prayer is for judgment decreeing the property to belong to deLuppe and to be subject to his debts and to execution against him. The argument presented by the appellant here is that ‘'wherever and whenever a debtor holds or owns property, whether formerly belonging to him, or transferred at his instance by a third person to another for the debtor’s account, and that transfer is a mere sham and simulation, the creditors has a right to sue to annul such transfer, and have the property placed in the name of the real owner thereof.”

The appellee’s answer to the foregoing is that parol evidence is not admissible “to show that Miss de Luppe is a person interposed and that she acquired the property for the account of Charles de Luppe, and that the allegations of the petition disclose that, at no time before the said transfer, was Charles de Luppe the owner of the property, or that he, at any time, contributed a cent towards the acquisition of the same.”

In Mouret vs. Vitry, 15 An. 653, it was said that “in an action by the creditors to annul a simulated sale of' their debtor’s property, such creditors enjoy privileges which would be denied to the debtor, but, in a suit to make out title for their debtor, the rights and privileges of the creditors are precisely the same as those of the debtor himself.” In Hoffman vs. Ackerman, 110 La. 1071, in which the allegations appear to have been of the same character as the allegations in this suit, a judgment creditor sought to have property, standing in the conveyance records as that of Miss Peters, decreed to belong to Miss Acker-man, on the grounds that it belonged in reality to the latter and that the former was a party interposed.

In finally disposing of the case, on rehearing, the Supreme Court said:

“On further consideration, and after re-argument, the Court is satisfied thatit erred in holding that parol evidence is admissible in this case. The rule is that parol evidence is inadmissible to affect title to real estate (Civil Code, Articles 2440, 2275), and the effect of admitting it in this case would be to transfer the title to the square of ground in question from Miss Peters to M'iss Ackerman.

April 22d, 1907.

“The rule is not without its exceptions, and among them are the familiar examples where the creditor seeks by the revoca-tory action, or the action en declaration de simulation, to bring back into the estate of the debtor property which the debtor has fraudulently transferred; but this Court has steadily refused to recognize as an exception to the rule the case where the purpose is to bring into the estate of the debtor real estate that has never formed any part of it.”

Considering that, in this suit the property never formed part of the debtor’s estate, that no allegation is made of written proof by counter letter, and that the only basis fo rthe annulment alleged is an understanding between de Luppe and his daughter “that she holds title nominally for his account and subject in all respects to his control and disposal,” we have reached the conclusion that this case must be governed by the rulings cited above.

Judgment affirmed.