Kennedy v. Bearden

471 So. 2d 871
CourtLouisiana Court of Appeal
DecidedJune 12, 1985
Docket17011-CA
StatusPublished
Cited by15 cases

This text of 471 So. 2d 871 (Kennedy v. Bearden) 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
Kennedy v. Bearden, 471 So. 2d 871 (La. Ct. App. 1985).

Opinion

471 So.2d 871 (1985)

Evelyn B. KENNEDY et al, Plaintiffs-Appellants,
v.
Oscar BEARDEN et al, Defendants-Appellees.

No. 17011-CA.

Court of Appeal of Louisiana, Second Circuit.

June 12, 1985.

*873 Charles E. Welsh, Bossier City, for plaintiffs-appellants.

Barham, Adkins & Tatum, Ruston, for defendants-appellees.

Before HALL, MARVIN and NORRIS, JJ.

HALL, Judge.

Mr. M.O. Bearden and his wife, Mrs. Annie Bearden, were 88 and 85-years-old respectively when they sold the 36 acres of Union Parish pasture-land upon which their home was built to Oscar and Odessa Bearden. The sale took place on February 27, 1978. While the 36 acres comprised all of the immovable property owned by Mr. and Mrs. Bearden, the elderly couple reserved a right of habitation so that they could continue to occupy their home. Oscar Bearden, who was one of Mr. and Mrs. Bearden's nine children, lived within sight of his parent's home. Oscar paid $10,000.00, the amount recited as the consideration in the cash sale deed, by cashier's check dated March 3, 1978. The $10,000.00 was deposited into a checking account opened in the name of Mr. M.O. Bearden on March 14, 1978. Within a month-and-a-half, all of the sale proceeds were returned to the account of Oscar Bearden.

Shortly after the sale, Oscar Bearden's son and family moved in with M.O. and Annie Bearden. On February 12, 1979 the old family home burned, and Mr. and Mrs. Bearden, who escaped the fire without injury, moved in with Oscar and Odessa Bearden. At the request of M.O. Bearden, Oscar and his son built a new house that was completed in August 1979 upon the site of the old family home. Oscar Bearden, Jr. and his family as well as M.O. and Annie Bearden moved into the new house. However, Mr. and Mrs. Bearden only occupied the house a short while. In October 1979, M.O. Bearden entered a nursing home where he remained until his death in November 1980. Mrs. Annie Bearden died shortly thereafter in February 1981.

The plaintiffs, other children and grandchildren of M.O. and Annie Bearden, co-heirs with Oscar Bearden, brought suit on May 27, 1981 attacking the sale of the land to Oscar. The trial court rejected plaintiffs' claims, finding that a valid sale had occurred which was not subject to recision on the grounds of lack of capacity, fraud, coercion, or lesion. On appeal, plaintiffs assert five assignments of error:

1. Monroe Bearden was incapable of contracting.
2. The purported sale was a pure simulation.
3. The purported sale was a donation omnium bonorum.
4. The purported sale was a donation in disguise that divested the forced heirs of their legitime.
5. The purported sale was invalid because of lesion beyond moiety.

After reviewing the record in this case, we affirm the trial court's judgment rejecting plaintiffs' claims and finding a valid sale not subject to recision.

CAPACITY

Attacks on a noninterdicted decedent's contract are addressed by LSA-C.C. Art. 1926 (Rev.1984) which provides:

A contract made by a noninterdicted person deprived of reason at the time of contracting may be attacked after his death, on the ground of incapacity, only when the contract is gratuitous, or it evidences lack of understanding, or was made within 30 days of his death, or when application for interdiction was filed before his death.

This new article does not change the law, but consolidates the provisions of LSA-C.C. Art. 1788(5)-(11) (1870) in a manner consistent with LSA-C.C. Art. 403 (1870). In the present case, the contract was not made within 30 days of Mr. M.O. Bearden's death, interdiction of Mr. Bearden had not occurred, and an application for interdiction was never filed. The contract provisions themselves evidence no *874 lack of understanding and, as discussed later in this opinion, the contract was not gratuitous. Therefore, the contract at issue cannot be attacked after the death of Mr. M.O. Bearden on the ground of incapacity. We note that even if such an attack were proper, plaintiffs in this case failed to show incapacity. The law of this state presumes the capacity to contract. Standard Life and Acc. Ins. Co. v. Pylant, 424 So.2d 377 (La.App.2d Cir.1982), writ denied 427 So.2d 1212 (La.1983). Exceptions to this presumed capacity are few and must be shown quite convincingly and by the great weight of the evidence. First Nat. Bank of Shreveport v. Williams, 346 So.2d 257 (La.App.3d Cir.1977). Rather than finding Mr. M.O. Bearden was incapable of contracting, the trial court found the testimony indicated that Mr. Bearden, while undoubtedly suffering from the disabilities of advanced age, remained fully cognizant of his actions and their significance long after the transaction and up until his death. We find no error by the trial court in this regard, and reject plaintiffs' contention that Mr. M.O. Bearden lacked capacity to contract at the time of the transaction. We further note that while Mrs. Annie Bearden signed the instrument, the issue of her capacity is not raised on appeal and will not be considered.

SIMULATION, DONATION IN DISGUISE, AND DONATION OMNIUM BONORUM

In Moore v. Moore, 427 So.2d 1320 (La. App.2d Cir.1983), forced heirs of deceased parents sued to nullify three conveyances from the parents to the forced heirs' deceased brother as simulations or donations in disguise impinging upon their legitime. When discussing the law applicable to simulations under those circumstances, this court stated:

A simulation is a transfer of property which is not what it seems. Simulations are of two types: pure simulations and disguised transfers. In a pure simulation, sometimes called a non transfer, the parties only pretend to transfer the property from one to the other, but in fact both transferor and transferee intend that the transferor retain ownership of the property. When this type of simulation is successfully attacked, the true intent of the parties is revealed; that is, that no transfer had in fact taken place. The other type of simulation is a disguised transfer which seems on its face to be a valid sale, but in fact is actually intended by the parties to be a gift rather than a sale. When this type of simulation is attacked successfully under Art. 2444, the true intent of the parties is likewise effectuated by the law. A valid transfer has taken place but its form is a donation rather than a sale and the Code articles on donations apply to the transfer.

See also LSA-C.C. Arts. 2025-2027 (Rev. 1984).

In the instant case, plaintiffs' second and fourth assignments of error allege the pure simulation and the disguised transfer respectively. We will first consider the claim of a pure simulation.

Two legal presumptions, one codal and one jurisprudential, apply in situations where a party seeks to prove a pure simulation. The codal presumption is found in LSA-C.C. Art. 2480 which provides:

In all cases where the thing sold remains in the possession of the seller, because he has reserved to himself the usufruct or retained possession by a precarious title, there is reason to presume that the sale is simulated, and with respect to third persons, the parties must produce proof that they are acting in good faith, and establish the reality of the sale.

The jurisprudential presumption of simulation applies where the evidence establishes the existence of facts and circumstances which create a highly reasonable doubt as to the reality of a putative sale. Wilson v.

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Bluebook (online)
471 So. 2d 871, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kennedy-v-bearden-lactapp-1985.