Hart v. Hart

3 La. App. 622, 1926 La. App. LEXIS 59

• Court: Louisiana Court of Appeal
• Decided: March 11, 1926
• Docket: No. 2088
• Status: Published

Opinion

REYNOLDS, J.

OPINION

Plaintiff presents two propositions.

He asks that the sale from him to his mother be declared a mortgage or security contract, but he does not allege that he executed the deed under error, fraud or duress. Hence he is not in position to offer any proof in support of the allegation that the deed was given as a security for debt, and his petition therefore fails to state a cause of action.

He also asks to be declared the owner of the property sued for by virtue of a promise of sale made , to him by his mother, dated May 10, 1913.

The petition does not allege that plaintiff accepted the offer of his mother during her lifetime to sell him the property, and under Article 1810 of the Civil Code:

“If the party making the offer die before it is accepted, or he to whom it is made die before he has given his assent, the representatives of neither party are bound * *

In his petition defendant alleges that his mother is dead and that by last will she had disposed of the property in controversy.

It therefore follows that the petition fails to state a cause of action as to his mother’s promise to sell him the property.

We are convinced that plaintiff’s petition fails to state a cause of action.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be amended by sustaining defendant’s exception of no cause of. action to plaintiff’s petition and that as amended the judgment appealed from be affirmed with costs.