Dempster v. Warner

OTT, Judge

(dissenting).

In my opinion, the plaintiff has failed to prove that she is the owner of the houseboat and furnishings sequestered in this case. It is not denied that the defendant owned the property when he and the plaintiff were divorced in 1934. For Mrs. Demp-ster to prove her ownership, she must prove some transfer of ownership of this property from the defendant to her since that date.

The fact that Mrs. Dempster advanced the money to pay the storage due the Lake Charles Boat Club, of course, would not make her the owner of the boat. The boat continued in the possession of the defendant and he exercised all of the usual acts of ownership thereof. The boat was assessed in his name, and so far as the record shows, Mrs. Dempster never at any time exercised acts of ownership or attemptedto direct the use of the boat.

In my opinion, the plaintiff advanced the money to get the boat out of storage through her desire to retain the friendship and good will of her former husband. The record is replete with evidence that she did not want to sever all social relations with him, and she felt free to use her ample means to assist him at a time that he was apparently at a rather low financial ebb.

Mrs. Dempster, in my opinion, was perfectly willing to pay this storage and the other expenses incident to the ownership and operation of the boat in return for the pleasure that she and her daughter received from their frequent trips to Lake Charles in order to enjoy outings and parties on the boat with the defendant. The letters that passed between them -indicate that they were on most friendly terms, and the boat was used by them apparently without any thought that the boat was the property of Mrs. Dempster and the defendant was merely her agent or custodian of the boat.

The letters which defendant wrote to his former wife asking for the money to redeem the boat from the boat club do not, in my opinion, indicate any serious intention on his part to divest himself of the ownership of the boat. These letters rather indicate friendly jesting. For instance, he says in his letter of July 7, 1935, to his former wife that the boat will be hers and that she can do with it as she pleases. He then goes on to state that she would need some one to take care of it, and suggested that she might give him the job, and concludes, “you know I can pass as your chauffer.”

And the so-called bill of sale which he executed in March, 1936, obviously was not a serious sale. The defendant himself states that it was merely a kind of security in case anything should happen. These letters and this bill of sale, interpreted in the light of the circumstances then existing and the relation of the partie.s, only show a desire on the part of defendant to express his appreciation for the liberal advances of money that the plaintiff was making to him from time to time.

When the parting of the ways came at the time the plaintiff was informed that the defendant was to marry another woman, the former did not immediately claim that she owned the boat and ask that it be delivered to her. If the defendant is to be believed (and the trial judge must have believed him} he offered to refund the money that plaintiff had advanced on the boat, but she told him that she would not have any more use for the boat; that she was going to leave and never come back. She took her personal belongings off the boat and removed the name “Dempster” from it, this name having been on the boat for many years. Her acts indicated that she did not then claim to own the boat. Her later effort to get possession of the boat through a claim of ownership was apparently an afterthought to harrass and annoy the defendant and his new wife.

' I do not find sufficient evidence in the record to justify a reversal of the finding of the trial judge on the question of the ownership of the boat and its furnishings.

I respectfully dissent.