Houston v. McCoy

351 So. 2d 829, 1977 La. App. LEXIS 4753
CourtLouisiana Court of Appeal
DecidedOctober 17, 1977
DocketNo. 11536
StatusPublished
Cited by4 cases

This text of 351 So. 2d 829 (Houston v. McCoy) 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
Houston v. McCoy, 351 So. 2d 829, 1977 La. App. LEXIS 4753 (La. Ct. App. 1977).

Opinion

CHIASSON, Judge.

This is an appeal of a judgment of the District Court in favor of Beatrice Levins [830]*830McCoy and James E. McCoy, defendants-appellees, and against William B. Houston, plaintiff-appellant, dismissing the plaintiff’s suit at his cost.

On September 12,1975, the plaintiff filed suit to recover $7,917.80 plus interest and attorney’s fees, the amount alleged as due under the terms of a promissory note signed by the defendants. The defendants filed exceptions of No Cause or Right of Action, Vagueness and Lack of Procedural Capacity. Following a hearing, the District Court dismissed these exceptions. The defendants filed an answer and a reconventional demand seeking damages for embarrassment and attorney’s fees. A trial on the merits was held and judgment was rendered dismissing the plaintiff’s suit. While the written Reasons for Judgment provided by the District Court do state that the defendants failed to establish the damages sought in their reconventional demand and that their claim will be denied, the judgment signed does not dismiss the defendants’ reconven-tional demand.

The facts in this case were summarized by the District Court as follows:

“Counsel stipulated the following facts. Plaintiff’s wife, Myrtle Cugle Houston, acquired certain property before her marriage to plaintiff. After her marriage to plaintiff, Myrtle Cugle Houston sold this separate property to defendant, James E. McCoy. This property was sold for $12,-000.00, $3,000.00 paid in cash and the balance of $9,000.00 represented by a note for that amount dated April 14, 1965, made payable to the order of ‘MYSELF’ in equal monthly installments of $67.10 each, including interest. The note, endorsed by James E. McCoy, bore interest at the rate of 6V2% per annum and provided for the payment of 10% attorneys fees to enforce collection.
“Mrs. Myrtle Houston married plaintiff in 1963 or 1964. She died intestate on February 20, 1975. She had no descendants nor ascendants and was survived by three sisters, one brother, nieces and nephews. Defendant, Beatrice McCoy, is one of decedent’s sisters.
“Plaintiff claims ownership of the promissory note and seeks payment herein under Louisiana Revised Statute 10:3-301. He has not sought execution of the vendor’s lien and privilege securing this note. “Defendants claim that plaintiff is not the lawful owner or holder of this note. They allege this note was the separate property of Myrtle Houston at her death and as such it was inherited by her collateral relatives, Beatrice McCoy being one of them.
“Evidence shows that the payments on this note were up to date and received by Myrtle Houston until her death. Thereafter defendants made the monthly note payments into a special bank account opened in the name of ‘Estate of Myrtle C. Houston’.
“Testimony of plaintiff, his son and daughter-in-law shows that plaintiff’s wife became sick in 1966 and never fully recovered. She had a total of four heart attacks and was diabetic. She was in and out of hospitals and incurred large medical, hospital and drug bills. Plaintiff was working for the City of Slidell during this time making $100.00 per week income. They had to borrow money to meet their financial obligations.
“Approximately six months before her death, Myrtle Houston, having just come out of the hospital, gave plaintiff the promissory note in question saying she would like to help ‘straighten out’ the debts. Plaintiff, his son and daughter-in-law witnessed this donation. Their testimony was all substantially the same, that Myrtle Houston took the note in her hand and stated that she was giving this note to plaintiff to help pay their debts. She then replaced the note in its usual resting place in their house where it remained until filed in this suit.
“This court finds that Myrtle Houston desired to and did make a manual donation of this note to plaintiff. The question presented is whether this donation was valid.”

In determining that the donation was not valid the District Court said:

[831]*831“During the marriage, a wife may donate to her husband in full ownership all that she might give to a stranger. Louisiana Revised Civil Code Article 1746 and Succession of Broussard, 306 So.2d 399 (La.App. 3rd Cir., 1975).
“A promissory note is an incorporeal movable. Louisiana Revised Civil Code Article 1536 and McLaughlin v. Knox, 224 So.2d 491 (La.App. 1st Cir., 1969). Article 1536 requires that every inter vivos donation of incorporeal things must be couched in an authentic act. Since the donation of this note to plaintiff was not made in an authentic act, the donation was not valid in form and must fall. McLaughlin v. Knox, supra.
“Plaintiff claims that this note is a bearer instrument, and as such is transferrable by mere delivery, he cites several cases in his brief to support this contention. This court feels these cases cited by plaintiff do not apply here. These cases deal with the requirement of authentic evidence in foreclosures by executory process.
“Since the gift of this note to plaintiff is invalid as a donation, the next question presented is whether or not this transfer can qualify as a remunerative donation. If this donation is remunerative, it is not subject to the rules which apply to donations except when the value of the object given exceeds by one-half that of the charges or services. Louisiana Revised Civil Code Article 1526.
“There is some question in the court’s mind as to whether the services rendered by plaintiff to his deceased wife and the debts of the community resulting from the donor’s ill health are supportive of a remunerative donation. However, the court is going to pretermit this question, since it feels that the evidence shows that the value of the note far exceeds by one-half the value of any services rendered or debt incurred.
“The burden of proof is on the defendants attacking the validity of a remunerative donation to show that the value of the donation exceeds by one-half the value of the services or debts incurred. Fenger v. Cagnolatti, 292 So.2d 901 (La.App. 4th Cir., 1974) and Placid Oil Co. v. Frazier, 126 So.2d 800 (La.App. 2nd Cir., 1961). Testimony produced at the trial of this matter satisfies this burden of proof. These medical expenses were community debts with exception of the last illness debts. Plaintiff testified that all of the hospital and doctor bills were paid by either Blue Cross or Medicare. He testified that ‘very little’ was left over or unpaid. Mrs. Beatrice McCoy testified that she made one payment of $500.00 toward Dr. Howard’s bill and gave plaintiff’s wife another $500.00 to be paid to Dr. Howard although she could not testify that she knew without a doubt that this second $500.00 was actually paid to Dr. Howard.
“The court feels that this testimony carried defendants’ burden of proving that the value of the note exceeded by much more than one-half the value of the charges or debts. It is very understandable in light of plaintiff’s small income that he would be forced to borrow money to pay any debts, no matter how small, outside of normal living expenses. Plaintiff offered no particular figures in rebuttal to establish the value of this alleged debt.

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351 So. 2d 829, 1977 La. App. LEXIS 4753, Counsel Stack Legal Research, https://law.counselstack.com/opinion/houston-v-mccoy-lactapp-1977.