O'Quin v. Russell

46 So. 100, 121 La. 57, 1908 La. LEXIS 631

• Court: Supreme Court of Louisiana
• Decided: March 30, 1908
• Docket: No. 16,897
• Status: Published

Opinion

PROVOSTY, J.

This is a petitory action. The real defendant is Mrs. Caroline Johnson, individually and as testamentary executrix of J. C. Johnson. Defendant individually claims title by virtue of a sale made by J. C. Johnson to her husband. It appears, however, that as part of the price of this sale defendant’s husband assumed to pay a certain mortgage debt upon the property, and that, he having failed to pay this debt, the mortgage was foreclosed and the property sold at judicial sale to certain parties, who later sold it to J. C. Johnson, and that still later J. C. Johnson sold it to the father of the plaintiffs. Plaintiffs claim title by inheritance from their father. Manifestly defendant individually cannot seriously pretend to title.

As executrix, defendant claims that the father of the plaintiffs, being unable to pay for the property, returned it to J. C. Johnson. In the alternative, defendant asks that the sale to plaintiffs’ father be set aside for nonpayment of the price.

Defendant offered parol evidence ■ for the purpose of proving this return of the property to J. C. Johnson, and for the purpose of taking out of prescription the notes given by plaintiffs’ father for the purchase price of the property, which notes had many years been prescribed at the filing of this suit. The evidence was properly excluded. Parol is inadmissible to prove a transfer of real estate, and is equally inadmissible to take the debt of a deceased person out of prescription.

This evidence, however, goes to show that plaintiffs are not entitled to demand the revenues of the property.

Judgment affirmed.