Carson v. Johnson

11 La. Ann. 757

• Court: Supreme Court of Louisiana
• Decided: July 15, 1856
• Status: Published

Opinions

Spofford, J.

(Merrick, C. J., dissenting.) In May, 1855, Tennent, Renick-son & Go. had a suit pending in the District Court of Ouachita parish against R. A. Carson, for about $1900. R. A. Carson had formerly been a merchant in the town of Vernon, parish of Jackson, but had been unsuccessful, and in the month of May aforesaid was, by his own acknowledgments, insolvent. It does not appear that he had then any other visible property, except four town lots and an undivided half of about twenty-five acres of land in the parish of Jackson.

On the 11th May, 1865, about two weeks before the final judgment against him, in favor of Tennent, Renickson & Co., was signed, R. A. Carson made a notarial conveyance of all the landed property just mentioned to the plaintiff, his brother, a young man who had but recently attained the age of majority, then living in Union parish. The conveyance professes to be a sale for the consideration of $550, “cash in hand paid,” and was recorded in the Recorder’s office of Jackson parish, on the 14th May, 1855.

Tennent, Renickson & Co. afterwards directed the Sheriff to seize the lots and land aforesaid, under their judgment against R. A. Carson. M. S. Carson sued out the present injunction against the Sheriff to restrain the sale, on the allegations that he was the true owner of the land, having bought it for $550 in cash.

Tennent, Renickson & Co. came in and denied the reality of the sale from their debtor R. A. Carson to M. 8. Carson, averred the same to be a fraudulent simulation, and prayed for a dissolution of the injunction, with damages in their favor. After a hearing upon the merits, the District Judge dissolved the injunction with damages, and the plaintiff has appealed.

It cannot be pretended that there was any truth in the averment of the plaintiff’s petition, that he bought the land in question for $550, cash in hand paid. No cásh was paid. The contract sought to be proved by the plaintiff is not a sale, but a remunerative donation from his brother for services rendered him as clerk three or four years before, when he was able to pay his debts. The only proof that there was an actual debt for such services is made by a third brother, who testifies that sometime in the month of May, 1855, (the time of the pretended sale,) “ he heard R. A. Garson admit that he was indebted to plaintiff, M. jS. Carson, in the sum of $550, for services as clerk in the town of Vernon.”

Now, it is shown that all the services that were rendered dated back to the years 1850 and 1851, when the plaintiff was a lad of seventeen or eighteen years of age, inexperienced in business. Nor does it seem that the plaintiff ever claimed or his brother R. A. Carson ever acknowledged the existence of such a debt until the month when this conveyance was made, and it was thought necessary to fix upon a consideration for a conveyance made on the eve of insolvency. In fact, the evidence leads to the conclusion that the idea of compensation was an after-thought which never occurred to the parties till a claim for wages was prescribed, and the pretended debtor found himself in insolvent circumstances, with a large suit impending over him. One of the plaintiff’s witnesses, a fellow clerk, says that Moses Carson, in reply to his enquiry what was he getting as clerk, said he did not know what he was getting.

One of the defendant’s witnesses, a man who bought out R. A. Carson, in January, 1852, when the plaintiff’s services terminated, testified, without objection on the part of plaintiff, that R. A. Garson told him he had written on to his brother to come out here, and that he was not giving him anything for clerking the first year. This was in 1850. When the witness bought out R. A. Garson, the latter desired him to retain his brother as clerk, and said that he had been attentive, that he had got nothing for his services, and that he would' not ask much; witness retained him for three months at ten dollars a month. Does not think there was any contract between plaintiff and his brother about wages; his brother supported him. This witness further states that in the spring of 1856, he sold some horses to R. A. Garson, and he asked for a receipt in his wife’s name, stating that he did not. own any property.

The land would seem to have been worth more than the pretended price. One witness swears that Carson’s interest in it was worth between $800 and $1000. A witness introduced by the plaintiff puts it lower, but still estimates it at $650.

It is not pretended that there was any actual possession by the plaintiff, a constructive possession by simulated notarial title is nothing. The record seems to support the views of the District Judge, who said that “the facts and circumstances of this case are irreconcilable with the reality of the transfer, while they are consistent with the hypothesis that it is a mere paper title.”

It is, therefore, ordered that the judgment be affirmed, with costs