Turner v. Young

Louisiana Court of Appeal

Turner v. Young

132 So. 237, 15 La. App. 425, 1931 La. App. LEXIS 12

CourtLouisiana Court of Appeal

DecidedJanuary 26, 1931

DocketNo. 719

StatusPublished

This text of 132 So. 237 (Turner v. Young) 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

Turner v. Young, 132 So. 237, 15 La. App. 425, 1931 La. App. LEXIS 12 (La. Ct. App. 1931).

Pincite

Opinion

MOUTON, J.

This appeal is taken from a judgment recognizing plaintiff and two minor sons entitled tq the ownership of a mare and colt, for damages as rental for [426]*426their use by defendant, and maintaining a writ of sequestration issued in the case.

Plaintiff was married to J. E. Brown in 1919, who died in 1922. Two children, now minors, were born of the marriage for whom she sues as owners in indivisión with her of the property, which was acquired by her husband before his marriage. She is now the wife of James Turner by a second marriage..

The defense of Young is, that he bought the mare from one Leonard, sold it to J. E. Brown, plaintiff’s first husband, on terms of credit, who being unable to pay returned the mare to him. His position is therefore that he reacquired the property by dation en paiement from his vendee, J. E. Brown.

The preponderance of the evidence shows that the property remained in the actual possession of the plaintiff for herself individually and as tutrix of the minor heirs from the death of her first husband in 1922, to about the year 1929, a period of over eight years, when without her consent or authority, personally or as tutrix, defendant took possession of the mare and colt.

Young testifies that J. E. Brown said, being unable to pay, he would return the property, but that the mare was then on the range, and that he did not take possession. It is elementary that the giving in payment is made only by delivery. C.C. art. 2656. This principle is not disputed by learned counsel for defendant, and the citation of decisions on the subject is unnecessary. Possession not having been delivered by J. E. Brown to defendant, it remained in his widow and minor heirs;, hence the dation en paiement was not legally effected, which gave plaintiffs the right to recover the ownership of the property with the maintenance of the sequestration and rental value for its illegal use by defendant as was decreed below.

Free access — add to your briefcase to read the full text and ask questions with AI

MOUTON, J.

This appeal is taken from a judgment recognizing plaintiff and two minor sons entitled tq the ownership of a mare and colt, for damages as rental for [426]*426their use by defendant, and maintaining a writ of sequestration issued in the case.

Plaintiff was married to J. E. Brown in 1919, who died in 1922. Two children, now minors, were born of the marriage for whom she sues as owners in indivisión with her of the property, which was acquired by her husband before his marriage. She is now the wife of James Turner by a second marriage..

The defense of Young is, that he bought the mare from one Leonard, sold it to J. E. Brown, plaintiff’s first husband, on terms of credit, who being unable to pay returned the mare to him. His position is therefore that he reacquired the property by dation en paiement from his vendee, J. E. Brown.

The preponderance of the evidence shows that the property remained in the actual possession of the plaintiff for herself individually and as tutrix of the minor heirs from the death of her first husband in 1922, to about the year 1929, a period of over eight years, when without her consent or authority, personally or as tutrix, defendant took possession of the mare and colt.

Young testifies that J. E. Brown said, being unable to pay, he would return the property, but that the mare was then on the range, and that he did not take possession. It is elementary that the giving in payment is made only by delivery. C.C. art. 2656. This principle is not disputed by learned counsel for defendant, and the citation of decisions on the subject is unnecessary. Possession not having been delivered by J. E. Brown to defendant, it remained in his widow and minor heirs;, hence the dation en paiement was not legally effected, which gave plaintiffs the right to recover the ownership of the property with the maintenance of the sequestration and rental value for its illegal use by defendant as was decreed below.

Cite This Page — Counsel Stack

Bluebook (online)

132 So. 237, 15 La. App. 425, 1931 La. App. LEXIS 12, Counsel Stack Legal Research, https://law.counselstack.com/opinion/turner-v-young-lactapp-1931.