No. 4091 Precedential Processed

Withers v. Mueller

Louisiana Court of Appeal, First Circuit · Filed April 6, 1970 · 235 So. 2d 597

Also decided on this docket: La. Ct. App. 1st Cir., March 12, 1973 274 So. 2d 875; La. Ct. App. 1st Cir., November 22, 1955 84 So. 2d 235; La. Ct. App. 3d Cir., February 16, 1932 139 So. 510; La. Ct. App. 1st Cir., January 28, 1907 4 Teiss. 161; La., November 15, 1872 24 La. Ann. 599

Cited by

Seth H. Schaumburg Versus Parish of Jefferson La. Ct. App. 5th Cir. 2020
Roy Anderson Corp. v. 225 Baronne Complex, L.L.C. 251 So. 3d 493 La. Ct. App. 1st Cir. 2018
Crowe v. Eagle Bend Development, Partnership 579 So. 2d 1101 La. Ct. App. 1st Cir. 1991
State ex rel. Office of the Governor v. L. W. Eaton Construction Co. 392 So. 2d 475 La. Ct. App. 1st Cir. 1980
Rourke v. Coursey 334 So. 2d 480 La. Ct. App. 3d Cir. 1976
City Stores Co. v. Gervais F. Favrot Co., Inc. 315 So. 2d 370 La. Ct. App. 4th Cir. 1975
Town of Logansport v. Copley 313 So. 2d 901 La. Ct. App. 1st Cir. 1975
Dimm v. Granier 284 So. 2d 850 La. Ct. App. 4th Cir. 1973
Tinney v. Lauve 280 So. 2d 588 La. Ct. App. 4th Cir. 1973
Barnes v. City of Hammond 276 So. 2d 746 La. Ct. App. 1st Cir. 1973

Opinion text

REDMANN, Judge (dissenting). On the face of the transfer from the corporation to the Louisiana partnership, it is subject to an action for lesion beyond moiety, LSA-C.C. arts. 1861, 2589. This right belongs to the corporation. But the settlor may have the right to require the return to the trust of all the stock of the corporation from the Texas partnership, and the subsequent demand by the trust-owned corporation against the Louisiana partnership for lesion. Because of the trust’s prohibition against alienation of the beneficiaries’ interests, I believe the settlor has the right to avoid the trustee’s transfer of trust assets defeating that purpose of the trust. I believe plaintiff here has a right of action to recall the corporate stock into the trust and require the Louisiana partnership either to return the immovable property or pay to the corporation the difference between the actual consideration ($10 plus) and the market value of the property. Plaintiff’s rights and action may be as complicated as the transactions she seeks to remedy; but I believe she has the right. I would declare the stock transfer null and remand for determination of full value of the property and judgment against the Louisiana partnership affording it time to pay the full price or, in default of payment, rescinding the sale, C.C. art. 1877. Rehearing denied. Redmann, J., is of the opinion the rehearing should be granted.