Baker v. McGuire

37 La. Ann. 628

• Court: Supreme Court of Louisiana
• Decided: June 15, 1885
• Docket: No. 1135
• Status: Published

Opinion

The opinion of the Court was delivered by

Manning, J.

The plaintiff is the widow of W. J. Q. Baker. In January 1882 she signed a confession of judgment in favour of Tobias Purcell and the judgment was rendered on proof of her confession and was recorded. The amount was twenty-five hundred dollars. Purcell died and his executor issued execution upon this judgment and the sheriff seized a tract of land of the plaintiff and advertised it for sale in June 1883. Mrs. Baker injoined the sale by this suit.

■ Her allegations are that her late husband was greatly involved and that she had acquired a home through the generosity of her aunt, that Purcell was her friend and confidential adviser in business and that he told her there was great danger that her husband’s creditors v ould try to make their money out of her land and would subject her to harassing and expensive litigation—that the best way to prevent that was to confess a judgment in his favour for a sum large enough to protect her property which being recorded would serve as a legal scarecrow to the threatening creditors—that she owed Purcell only “ a trifling amount” and signed the confession in error having been induced thereto by the fears implanted in her mind by the representations of Purcell of impending danger—that a counter-letter setting out the simulation of the affair was signed by Purcell and delivered to her and remained in her possession some months but was handed back to Purcell to have a slight error corrected and he died without returning it, and that she has sought to have search made among his papers for it but it has not been found.

The defendant executor peremptorily excepted that the petition discloses no cause of action, that the acts and doings therein alleged are contrary to good morals and public policy and cannot be considered by a court of justice. The lower court sustained the exception, dismissed the suit, and dissolved the injunction. The plaintiff appealed.

The ruling is error. The allegation is not that she apprehended pursuit by her own creditors and interposed this seeming obstacle to them, or that she contrived or assented to a scheme the object of which was to deceive any person who had a legitimate claim upon her property. The only fear alleged is that the creditors of another might attempt to pursue her and might attempt to subject her property to the payment of debts not her own. There is therefore no allegation of an act of her own or a combination of herself and a confederate to perpetrate a fraud to the prejudice of any one, but merely the adoption by her of a device that was to enable her to hold what was her own against the assault of those who had no right to it, and there is an allegation that the truth of the whole matter is set out in a counter-letter which she and the only other person concerned signed.

The bare question is whether it is against decency and good morals to allege that one adopted a certain method to screen her property from the attack of another who had no claims upon it, and when no fraudulent intent is averred and no act is alleged to have been done of a fraudulent character.

The counsel for the defendant invokes the rule that a confession of judgment cannot be avoided by an allegation of error of law though it may be by an error of fact. Rev. Civ. Code art. 1846. But we have not reached a stage of the case when that can be considered. The sole question now is, must the plaintiff be turned out of court because she has alleged what good morals and public policy does not permit her to allege, and upon that question we differ from the court below.

It is therefore ordered and decreed that the judgment of the lower court is reversed and the cause is remanded for further proceedings the costs of appeal to be paid by the appellee.