Tessier v. Roussel

On Application ror Rehearing. Watkins, J. The controversy here presented, and, in our opinion, decided, is whether the title to a certain valuable sugar pl.autation tendered by the plaintiff, was and is such an one as the defendant was bound to accésit and can be compelled to take. The determination of this question involves the consideration of the effect of a gratuitous donation, of an interest in the land, from one Guidry, Junior, to Guidry, Senior, the effect of which plaintiff contends was extinguished by confusion resulting from the donor’s re-acquisition of the title, and through whom it passed to him free of its effect. This application assigns error in our opinion in favor of the defendant, in two particulars. One is, that we practically held that property was inalienable by donation, (quoad the issue, present and future, of the donor; and that, conceding, arguendo, the correctness of such a rule, there are exceptions thereto, as when, by subsequent conveyances of the property, the donor becomes the assignee, or proprietor thereof by a new title, such re-acquisition of the property having the effect of extinguishing by confusion the right of resolution. Counsel then suggests a case where the donor at his death is the owner, by.purohase, of the property which had been theretofore donated by him, and propounds this query: Would his heirs have a right of action against the succession for the resolution of the donation 9 We cannot perceive any difference between the situation of the title in the hands of the original donor and that it would occupy in the hands of any other vendee of the donee. Eor being a purchaser from the donee, or his assign, he necessarily paid a consideration for the property and received a new title to it. lie then further suggests a case where the donee has first reacquired the property and sold it again, and propounds this query: Would the heirs of the donee be entitled to take the proceeds of the sale, and, also, have the right of resolution 9 That they would have the right of resolution, we think, is clear, but, whether they could have the right to take the proceeds of the sale, at the same time — i. e. if they were on hand, in kind, and could be identified — is very much doubted. But, we take it, that the succession of the donor would occupy the *483 precise attitude that the donor did in life, and the heirs in this case, as in all others, would have the right of determining' for themselves whether it was to their interest to accept or reject it. It might be insolvent, burdened with onerous charges, subjected to heavy costs and expenses of administration, and the heirs might find it to their interest to assert their right to the legitime in preference to accepting the succession, and, being forced heirs, they can choose which course they will pursue. If the donor cannot divest himself of Ms property by gratuitous title, to the prejudice of the legitime of his heirs, we fail to perceive how he could eliminate the defect from his title by purchasing it from Ms donee. And should he have purchased from the donee arid died, how could his succession possess any better title than he had while living? 'It could not. The Code declares that “ immovable, property that is brought into the succession through the effect of reduction, is brought into it without any charge of debts or mortgage created by the donee.” R. C. C. 1515. (The italics are our own.) This article furnishes a complete answer to the counsel’s interrogatories. Its provisions were under consideration, and enforced in the case of Carroll vs. Cockerham, 38th Annual; see pages 821 and 1822; and the case of Hadden vs. Shepperd, 1 La. 506 , therein cited. The French authorities on this subject are equally clear. They say the right to demand the reduction is personal to the forced heirs, who cannot bo, from that standpoint, considered as the representatives of the deceased. In other words, the forced heir is invested, in what concerns his reserve, with a right which is proper to him. Hence he cannot be bound by the acts of his author, which are calculated to affect his legitime. Demolombe, t. 19, No. 208; Laurent, t. 12, No. 137. The approval, or confirmation, during the life of the donor, by his children, of the acts which work prejudice to them, is no estoppeL to a suit in reduction, brought by them after the death of the father. Toullier, Vol. 5, No. 163; Troplong, Vol. 2, No. 938; Domalombe, t. 19, No. 229; Laurent, t. 12, No. 163; Aubry & Rau, V. 7, No. 229, Sec. 586. The right of the heir to have the donated- property, brought back into the succession of the donor, free from debts and mortgages created by the donee, being personal to the heir, and not an incident of his being a representative of the deceased, it is altogether unaffected by either the acts of the author, or those of the heir during the life of the donor, prejudicial to his legitime. *484 Learned counsel of the applicant submits this proposition, viz : Suppose Guidry, Sr., had survived Guidry, Jr., and that at the time of the latter’s death, the mortgage debt on the donated property due Mm, had amounted to $12,000. Now, according to the theory of our learned opponents, the. representatives of the beneficiary heirs would proceed first to foreclose the mortgage, cause the property mortgaged to be sold, reduce to possession the amount of the debt, add the same to the mass, in order to ascertain the disposable portion, and that being determined, institute the resolutory action against the adjudicates of the same property to recover the amount in excess of the disposable quantum. Such proceedings would not be tolerated for a moment in a court of justice. Certainly not, as our argument has just explained. But counsel is in error in his conclusion that “ there could be no possible difference, nor can any reasonable distinction be made between the foreclosure of the mortgage by the donor and his heirs,” as we have just cited authority to show. The other particular in which error is assigned, in our opinion, is that the articles of the Code upmn which it is founded do not have any application “to married persons having no children at the time of the donation.” The portion of our opinion referred to, is the following, viz: “ The effect of the accomplishment of this condition retroaots to the date of the donation, and operates its revocation, or dissolution ab initio, to the extent of the excess.” On this subject wo have the following from the counsel’s brief, viz : “ The following are the principal provisions in the Civil Code relating to the disposable portion : “'Donations inter vimos or mortis causa cannot exceed two-tliirds of the property, if the disposer, having no children, leave a father, mother, or both.’ R. C. C. Art. 1494. “ ' Whore there are no legitimate descendants, and in case of the pre- ■ vious decease of the father and mother, donations inter vivos and mortis ccmsa may be made to the whole amount, of the property of the disposer, saving the reservation made hereafter.’ R. C. C. Art. 1496. “' The donation inter vivos shall, in no case, divest the donor of all his property; he must reserve to himself enough for subsistence; if he does not do it, the donation is null for the whole.’ Ibid. Art. 1497. ‘"Any disposal of property, whether inter vivos or mortis omisa, exceeding the quantumb of which a person may legally dispose to thepreju *485 dice of the forced heirs, is not null, but only reducible to that qgiantumi.’ Ibid. Art. 1502. “ ‘A donation inter vivos exceeding the disposable quantum, retains all its effects during the life of the donor.’ Ibid., Art. 1503. “ ' The donee restores the fruits of what exceeds the disposable portion only from the day of the donor’s decease, if the demand of the reduction was made within the year; otherwise from the day of the demand.’ Ibid. Art. 1515. '“All of the above written Articles were contained in the Code of 1825, and are reproduced verbatim in the Revised Civil Code.’” The contention of counsel is that under the Code of 1825, the distinct provision 'was made for donations by persons without children, and that they are embraced in Articles 1556 to 1561, of that Code, inclusive. Article 1556 provides that "all donations inter vivos made by persons having neither children, nor descendants, actually living at the time of the donation * * shall be considered as revoked up to the disposable portion by the birth of children of the donor * * if the child be born since the donation.” (The italics are ours.) Counsel’s contention is that there was an “ openconflict ” between these codal provisions, and hence, when, in 1870, the Code was revised, the articles cited were omitted, and that the argument to be deduced therefrom is that a donor, who, at the time, has no children, is unrestricted in donations he may make during the period of time he may have no children.- This proposition is readily answered by the terms and provisions of the following Articles of the Revised Civil Code, viz: “ Donations inter vivos or mortis causa cannot exceed two thirds of the property of the disposer, if he leaves at his decease, a legitimate ehild, etc.” Art. 1493. '' Donations inter vivos or mortis causa cannot exceed two-tliirds of the property, if the disposer, having no children, leave a father, mother, etc.” Art. 1494. “ In the cases prescribed by the last two preceding Articles, the heirs are called forced heirs, because the donor caimot deprive them of the portion of his estate reserved for them by law, etc.” Art. 1495. All of these Articles, in terms, refer to the time of the donor’s decease, and to the heirs he shall leave at his death, as controling the amount of the donation, and as fixing the legitime of the heirs. These provisions are identical with those of Articles 1480, 1481 and 1482 of the Code of 1825. Such being the case, it appears to us, perfectly clear, that Articles 1556 *486 et seq. of tlie latter, were properly dispenser! with by the Legislature, and eliminated from the Revised Code. Those we have just recited, therefore, contain, in effect, a similar, if not the same restriction, and fully substantiate and support our opinions. We have given this question most careful and serious consideration, audit has only served to strengthen and fortify the conclusions reached in our original opinion. In any view that can be taken of it, and whatever might be the conclusion we should reach on the trial of the righis of the heirs, we are thoroughly satisfied that it raises such doubt of tlie validity of the plaintiff’s title, that we do not feel authorized to pronounce it perfect and unquestionable, and compel the defendant to accept it. Rehearing refused. Mr. Justice Poché recuses himself.