Andrus v. Andrus

634 So. 2d 1254, 1994 WL 65259
CourtLouisiana Court of Appeal
DecidedMarch 2, 1994
Docket93-856
StatusPublished
Cited by13 cases

This text of 634 So. 2d 1254 (Andrus v. Andrus) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Andrus v. Andrus, 634 So. 2d 1254, 1994 WL 65259 (La. Ct. App. 1994).

Opinion

634 So.2d 1254 (1994)

Prinella Francis ANDRUS Indiv., etc., Plaintiff-Appellant,
v.
Arista ANDRUS, et al., Defendants-Appellees.

No. 93-856.

Court of Appeal of Louisiana, Third Circuit.

March 2, 1994.

*1255 Orida B. Edwards, Lafayette, for Prinella Francis Andrus, Indiv., etc.

Ashton Joseph Landry, Lafayette, for Arista Andrus, et al.

Before GUIDRY, LABORDE and THIBODEAUX, JJ.

THIBODEAUX, Judge.

In dispute is the validity of a donation inter vivos of immovable property. Appellees, Arista Andrus and Lorena Simpson Andrus, executed an "Agreement to Donation" in favor of their son, Junius J. Andrus, who is now deceased. The agreement purported to transfer a parcel of land located in Lafayette Parish, Louisiana. The trial court held that the act purporting to donate the property to Junius did not comply with La.Civ.Code art. 1536 and, therefore, was the property of the appellees, Arista and Lorena. The court further found that the appellant, Prinella Francis Andrus, Junius's widow, was entitled to one half of the community funds used to enhance the property and awarded her $6,667.22, which represented her community interest.

For the following reasons, we affirm.

FACTS

The facts of this case are undisputed. Appellant, Prinella Andrus, is the surviving spouse of Junius, who died intestate on October 15, 1991. Prinella and Junius were married on March 22, 1986 and one child, Jonathan Joseph Andrus, was born of the marriage. On October 20, 1986, Arista and Lorena executed an act entitled "Agreement to Donation" in favor of their son, Junius. The act purported to donate the following described property:

"This certain parcel of ground in Ward 3, a section of Sec. 37, T98, R3E, Lafayette Parish, Louisiana, containing 2.4 arpents and located on Louis Arceneaux Road."

The Act was filed in the records of the Lafayette Parish Clerk of Court. It was signed by Junius, Arista and Lorena, and two witnesses, one of whom was Prinella. The "Agreement to Donation" is reproduced below.

*1256

*1257 Prinella and Junius were in the process of completing the interior of their brick family home constructed upon the above described parcel of land. Arista and Lorena consented to the couple building their home upon the property.

Trial on the merits was held on September 16, 1992. Following trial, the trial court held that the parcel of land at issue belonged to Arista and Lorena Simpson Andrus. The court based this finding on the fact that the instrument in question was not properly authenticated pursuant to La.Civ.Code art. 1536 and, therefore, the immovable was not transferred. Further, the court found that Prinella was entitled to her community share of the improvements. The court determined that the total amount of community funds used to improve the parcel of land was $13,502.44. The trial court reached this figure by accepting page one of Prinella's detailed itemized list minus the amount representing the cost of a refrigerator for the sum of $1,452.33. Since it was a movable, he ordered its return to Prinella. It also deducted $168.00 since it was also represented by the cancelled checks submitted by Prinella for which she had already been given credit. The court further accepted the checks submitted by Prinella which totalled $2,163.67, representing the amount paid for electrical service labor.

It is from this judgment, signed March 15, 1993, that Prinella appeals asserting the following two assignments of error:

(1) The trial court erred in ruling that the parcel of ground at issue is the property of Arista Andrus and Lorena Simpson Andrus; and,
(2) The trial court erred in its computation of the award of damages to Prinella.

ISSUE

Was the instrument executed by Arista, Lorena and Junius on October 20, 1986, effective as an Act of Donation Inter Vivos of Immovable Property pursuant to La.Civ. Code art. 1536, thereby effectively transferring ownership of the property to their son, Junius.

LAW AND DISCUSSION

Prinella first contends that the parcel of land in dispute belongs to the estate of Junius, but that the house situated on the land is community property, which belongs to both she and the estate of Junius. On the other hand, Arista and Lorena contend that the act which they executed on October 20, 1986, is not enforceable as an act of donation and that if it is enforceable, the parcel of land is not community property but Junius's separate property.

There is no question that the act was passed in the presence of two witnesses, but at the bottom of the instrument is the sentence, "This instrument not prepared by notary." The provisions of La.Civ.Code art. 1536 are reproduced below:

Art. 1536. Donation of immovables or incorporeals, form required
An act shall be passed before a notary public and two witnesses of every donation inter vivos of immovable property or incorporeal things, such as rents, credits, rights or actions, under the penalty of nullity.

The instrument involves the transfer of immovable property inter vivos; thus, it was required to be passed before a notary public as well as two witnesses. The "Agreement to Donation" obviously was not an authentic act as there is no proof in the record and no recital in the instrument that it was passed before two witnesses and a notary. See, Hardin v. Williams, 478 So.2d 1214 (La.1985). Plainly, the trial court was correct in finding that the act was not authentic and could not operate to transfer title to Junius. Because it was not an authentic act, the instrument was nothing more than an act under private signature. A donation of immovable property by act under private signature is null. Hardin, supra. The trial court was correct in holding that ownership of the property remains with Arista and Lorena.

*1258 Prinella next argues that in the event this court finds that the trial court was correct in holding that the donation was invalid, then she should be awarded damages based upon the theory of detrimental reliance, which she claims would allow her to recover the money she expended on the construction of the house and improvements to the parcel of land. In the further alternative, Prinella contends that she meets the requirements of a good faith possessor and, as such, she is entitled to either the reimbursement of the funds she expended for materials and labor, or the enhanced value of the land.

In support of her detrimental reliance claim, Prinella asserts that she relied, to her detriment, upon Arista's and Lorena's verbal promise to donate the land in dispute, which was later reduced to writing and filed. Prinella further claims that she incurred certain financial obligations, although she was under no obligation to do so, based on her reasonable reliance upon Arista's and Lorena's promise. Detrimental reliance is designed to prevent injustice by barring a party from taking a position contrary to his prior acts, admissions, representations, or silence. John Bailey Contractor, Inc. v. State, DOTD,

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Cite This Page — Counsel Stack

Bluebook (online)
634 So. 2d 1254, 1994 WL 65259, Counsel Stack Legal Research, https://law.counselstack.com/opinion/andrus-v-andrus-lactapp-1994.