Miller v. Miller , 234 La. 883 ( 1957 )

SIMON, Justice.

The validity of an authentic act of dation en paiement executed by a husband and wife wherein the husband conveyed a one-half undivided interest in his separate property to extinguish a debt due to his wife in the sum of $750, which sum he therein acknowledged having received from her sep arate funds and having used in his personal and business affairs, is assailed by the husband.

Plaintiff and defendant were married on December 9, 1930, each then owning and possessing separate estates, the wife’s estate being situated in the Parish of St. Helena, and the husband’s in the Parish of East Feliciana. Their matrimonial domicile was established on the tract of land comprising 145 acres in the Parish of East Feliciana and on which they are presently living together as husband and wife.

On August 21, 1942, the act of dation en paiement in question was executed and the consideration and other pertinent conditions therein are as follows:

“Henry W. Miller, a resident of the Parish of East Feliciana, said state, who declared and acknowledged that he is justly and truly indebted unto his wife, Mrs. Ellen Wall McNabb Miller, in the just and full sum of Seven Hundred Fifty ($750) Dollars, lawful money of the United States of America, which total sum of money he has made use of in his private affairs and business, being her separate funds acquired previous to her said marriage to the said Henry W. Miller; that wishing to release himself from such indebtedness and refund to her, his said wife, the amount due and owing her as aforesaid, and availing himself of the provisions of Article No. 2446 of the LSA-Civil Code of the State of Louisiana, he did, and does, hereby, make unto his said wife a “dation en paiement” by hereby transferring and conveying unto his said wife, Mrs. Ellen Wall McNabb Miller, here present and accepting, and duly authorized by her said husband to accept, all and singular the property therein desci'ibed * * * ”

The dation contained the following clause granting a right of redemption in favor of the husband:

“It is further agreed that at any time within the space of ten (10) years from this date, this said vendor to have the option to repurchase this said land by paying the price above given plus five (5%) per cent per annum thereon until and if redeemed.”

On May 11, 1955 the wife as a co-owner by virtue of the dation en paiement instituted this suit against her husband setting up her title in indivisión with him and prayed that the said property be partitioned in kind or by licitation, and that she be authorized to administer, use and enjoy her undivided half as her separate estate.

The defendant denied the material allegations of plaintiff’s petition and averred that the alleged dation en paiement is in fact a contract of sale executed in violation of a prohibiting law and hence is null and void. As alternative defenses he plead (1) the alleged lack of consideration, and (2) the failure of actual delivery of the property necessary to perfect the transaction.

Plaintiff then interposed pleas of prescription of four and ten years against the said alternative defenses.

The district court rendered judgment dismissing plaintiff’s suit at her cost and decreeing the act of transfer sued on to be null and void and ordering the same stricken from the conveyance records.

It is too well settled by the decisions of this Court to admit of much discussion that a man may validly transfer to his wife, by dation en paiement, and she may validly receive and acquire cum onero, property so transferred just so long as she does not make herself personally liable for or assume an obligation or debt of her husband.

Under LSA-C.C. Art. 1790 because of the relationship between husband and wife, their contracts with each other are forbidden. The general incapacities of husband and wife to contract as between themselves is subject to three exceptions sanctioned by LSA-C.C. Art. 2446, one of which exceptions permits a contract of sale between them when the transfer made by the husband to his wife, even though they are not separated, has a legitimate cause, as the replacing of her dotal or other effects alienated.

Our civil law favors restitution to the wife and looks with favor upon the efforts of the husband to secure her just and honest claims against him. Hewitt v. Williams, 47 La.Ann. 742, 17 So. 269; Colvin v. Johnston, 104 La. 655, 29 So. 274. It also recognizes the right of the wife, like any other creditor, to exercise diligent efforts to secure her debts and imposes upon the husband an inexcusable duty to aid and assist her in securing her just claims. The insolvency of the husband cannot defeat the legal and valid rights of the wife to have her paraphernal property, converted by the husband, replaced. As consistently stated by us, there exists three essential factors necessary to the validity of a dation en paiement: (1) the real indebtedness of the husband to the wife, (2) the just value of the property transferred for the existing debt, and (3) the delivery of the property to the wife. LSA-C.C. Art. 2446 and cases hereinafter cited.

It is undisputed that the plaintiff wife owned a separate revenue producing estate and which was under her personal administration, both prior to and during her marriage to the defendant. In the act of dation the husband unequivocally stipulated his indebtedness to his wife in the sum of $750, admittedly moneys which he had received from her separate estate and which inured to his separate benefit. In said act he further unequivocally declared that, availing himself of the provisions of LSA-C.C. Art. 2446, the sole purpose and motive underlying the execution of this dation was his wish and desire to release himself from such indebtedness and to refund to her the amount justly due and owing. Under the positive recitals of this act we are unable to sanction the husband’s attempt to avoid or deny his solemn declarations, in authentic form, as is here presented. It is highly significant that the defendant does not attack the authentic document as having been made by mistake, fraud or error on the part of either party thereto.

The law relative to authentic acts is clear and unambiguous. LSA-C.C. Art. 2236 provides that the authentic act is full of proof of the agreement contained in it, against the contracting parties and their heirs or assigns, unless it be declared and proved a forgery. Parol evidence shall not be admitted against or beyond that which is contained in the act, nor on, what may have been said before, or at the time of making them, or since. LSA-C.C. Art. 2276.

In the early case of Godwin v. Neustadtl, 42 La.Ann. 735, 7 So. 744, we proclaimed it to be horn-book law in our jurisprudence that the verity and reality of authentic sales can be assailed by the parties thereto only in two ways, viz.: first, by means of a counter-letter; second, by the answers of the other party to interrogatories on facts and articles. In the instant case the defendant has not employed either of the said acceptable modes of contradiction of the transfer here in question.

The defendant further contends that the instrument is a nullity on its face as a result of the redemption clause by which the husband contracted to pay to the plaintiff wife the sum of $750, plus five percent interest per annum thereon from date of the dation en paiement, should he decide to redeem the property, and the wife binding herself to retransfer same should he elect to redeem it within a stipulated period of ten years.

The effect of this redemptive clause is obviously one which is personal to the defendant and constituted a personal advantage to be exercised or waived at his option. Having allowed the period of redemption to expire he must be held to have waived such right, rendering said stipulation as between the parties as though not written; and consequently upon his failure to exercise his right the wife’s title to the property therein transferred became absolute, vesting in her a perfect legal title.

In the case of Brooks v. Broussard, 136 La. 380, 67 So. 65, 66, this Court considered the effect of a right of redemption contained in an act of transfer as follows:

“The transaction on the face of the acts was a sale, with the privilege or option of repurchasing within a limited period of time, and for a higher price. In a sale with the right of redemption, the vendor reserves to himself the power of taking back the thing sold by returning the price paid for it. Civil Code, 2567. If such right is not exercised within the time agreed on by the vendor, the purchaser’s title becomes absolute. Id., 2570. Hence, even considering the transaction as a sale with the right of redemption, a perfect legal title vested in the plaintiff on November 1, 1913.

“The purpose of the sale was to provide for the payment of all the incumbrances on the property, and to secure to the vendor a delay of nine months, within which to pay the sum agreed upon as the price of redemption, and also to secure to the vendor the free use of the premises during the year 1913. Boiled down, the transaction was a transfer of property to pay the debts of the vendor, with a stipulation of the right'of redemption. In a similar case this court' held that an act ostensibly a sale, the purchase of which was to extinguish a real indebtedness, is not a mortgage, but a giving in payment. See Keough v. Meyers & Co., 43 La.Ann. 952, 9 So. 913. In that case, as in this, the vendor remained in possession of the property.”

The further contention is made that the act of transfer by the defendant never became effective since actual delivery, allegedly necessary under LSA-C.C. Art. 2656 to perfect such a transaction, was not made.

LSA-C.C. Art. 2479 provides: “The law considers the tradition or delivery of immovables, as always accompanying the public act, which transfers the property. Every obstacle which the seller afterwards interposes to prevent the taking of corporal possession by the buyer, is considered as a trespass.”

LSA-C.C. Art. 2656 provides: “That giving in payment differs from the ordinary contract of sale in this, that the latter is perfect by the mere consent of the parties, even before the delivery, while the giving in payment is made only by delivery.”

In the early case of Brown v. Brown, 30 La.Ann. 965, we analyzed the effect of the foregoing codal articles and concluded that the apparent reason in the rule pronounced in LSA-C.C. Art. 2656, though not at first apparent, was that a payment is never complete until the thing thereby paid is delivered. We distinguished this rule in considering the transfer of immovables and concluded that what constitutes delivery must be determined by reference to the other provisions of our civil code and recognized the fact that the delivery of immovables is always considered as accompanying the public act transferring them, whether that act be a sale or dation en paiement.

In the case of Jaubert v. Quilter, 48 La. Ann. 244, 19 So. 279, 280, we said: “In the dation en paiement, as in the sale, delivery may be perfected by the vendor holding after the sale as a tenant, or for the purchaser.”

In the Succession of Curtis, 156 La. 243, 100 So. 412, 414, the contention was made that actual delivery is necessary to perfect a dation en paiement. We took cognizance of the fact that in the case of Shultz v. Morgan, 27 La.Ann. 616, that Justice Taliaferro, the organ of the court, interpolated the word “actual” which is not found in the text of LSA-C.C. Art. 2656, and further took cognizance of the case of Brown v. Brown, supra, saying: “But so far as the dictum of that case (Shultz v. Morgan) is applicable to the public acts transferring immovables, whether they be sales or dations en paiement, we cannot give it our assent.” Thereupon, we concluded that the delivery of immovables, where disposed of by public act, is considered as accompanying the act, whether a sale or a dation en paiement.

In the Succession of Dupre, 218 La. 907, 51 So.2d 317, 319, after declaring that the giving of a thing in payment of an obligation is likened to what is known in common law as an “accord and satisfaction,” we held that the delivery of immovables accompanies a public act transferring them by a sale or a dation en paiement, citing and relying on LSA-C.C. Art. 2479, the Brown, Jaubert and Curtis cases, supra.

In the recent case of Warden v. Porter, 228 La. 27, 81 So.2d 707, it was contended that the deed there in question being a dation en paiement made exclusively in satisfaction of a debt was null because of the failure of delivery of the property under the requirements of LSA-C.C. Art. 2656. We held this contention to be without merit for the reason that LSA-C.C. Art. 2479 expressly declares that: “The law considers the tradition or delivery of immovables, as always accompanying the public act, which transfers the property * * * ” We further concluded that the continuance of possession by the transferrer of the property in the capacity of a usufructuary did not alter the fact of delivery as accompanying the authentic act.

Plaintiff asserted her right to administer and completely use and enjoy her separate property, to which end she desired a partition. The defendant does not contest her right to a partition of the property and indeed he cannot, for it has long been the settled law of this state not only is one not compelled to own property in indivisión with another, hut it is equally well settled that a married woman has the right to resume the administration of her paraphernal property at will, and to that end to resume possession of it, and, to acquire and protect such possession, and if necessary may bring suit against her husband, independently of any suit for separation of property, or from bed and board, or for divorce. See Wilkinson v. Wilkinson, 147 La. 315, 84 So. 794.

For the reasons assigned the judgment of the district court is reversed, annulled and set aside and it is now ordered, adjudged and decreed that there be judgment herein against the defendant, Henry W. Miller, and in favor of the plaintiff, Mrs. Ellen Wall McNabb Miller, recognizing her to be the true and lawful owner of an undivided one-half interest in and to the following described property:

“One Hundred Forty-Five (145) Acres, more or less, lying, being and situated in 2nd Ward, Parish of East Feliciana, State of Louisiana, described as being bound on the North by Kemp and Sale; East by Sale; South by W. C. Hall and O’Conner; and West by Public Road, being the same land acquired by vendor as per act of record in conveyance books P-2, Folio 227 and S-2, Folio 271 of East Feliciana Parish, Louisiana.”

It is ordered that there be further judgment in favor of plaintiff, Mrs. Ellen Wall McNabb Miller, decreeing that the property be partitioned in kind, if possible, and to this end that the case be remanded to the lower court for further proceedings consistent with the views herein expressed. All costs of this proceeding to be borne by defendant.