Wise v. Johnson

241 So. 2d 534, 1970 La. App. LEXIS 4709
CourtLouisiana Court of Appeal
DecidedNovember 17, 1970
DocketNo. 11510
StatusPublished
Cited by4 cases

This text of 241 So. 2d 534 (Wise v. Johnson) 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
Wise v. Johnson, 241 So. 2d 534, 1970 La. App. LEXIS 4709 (La. Ct. App. 1970).

Opinion

DIXON, Judge.

This case was previously before us, when we reversed a motion for summary judgment in favor of the plaintiff and remanded the case for trial (see 229 So.2d 197).

Defendant now appeals from a judgment rendered after trial which decreed certain conveyances to be simulations and null and void. Two of the instruments were executed by the plaintiff, George W. Wise, to the defendant, Jake Wise Johnson. One was dated April 14, 1962 and recorded in Book 110, page 428 of the Conveyance Records of Red River Parish, Louisiana, covering what has been referred to in the trial as the “home place.” The other deed executed by the plaintiff to the defendant was dated May 7, 1963 and recorded in Book 112, page 412 of the Conveyance Records of Red River Parish, covering a tract of land adjoining the home place. [535]*535The judgment appealed from further, in response to an alternative reconventional demand by the defendant, found to be a simulation and therefore null and void (insofar as the interest conveyed by Jake Wise Johnson) a deed executed by the defendant, Jake Wise Johnson and others, to George W. Wise, recorded on October 23, 1961 in Conveyance Book 109, page 524, Red River Parish, covering an undivided interest in property occupied by “George Wise Variety Store.”

Plaintiff treats his case as a suit to have two deeds executed by him and others, purportedly conveying land to his sister, the defendant, Jake Wise Johnson, set aside as simulations. Each deed recites a cash consideration of $1000.00. Written interrogatories were propounded by the plaintiff to the defendant.

The interrogatories propounded to the defendant asked: “Is it a fact that you did not pay any cash at all for the said property? If your answer * * * is no, please state how much you paid for the property and in what manner and to whom was it paid.”

In answer to the interrogatories, defendant admitted that the recited sum of $1000.00 was not paid, but that the consideration for the transfer from George and others to Jake was the prior conveyance by Jake to George of her undivided interest in the George Wise Variety Store property.

Fairly construed, the answer of Jake Wise Johnson denies that the instruments under attack were simulations and not supported by consideration. To the contrary, appellant’s answers to interrogatories disclose her contention that there was a consideration different from that expressed in the instruments. That consideration, according to appellant, was the prior execution by the appellant, Jake Wise Johnson, to her brother, the plaintiff-appellee, George W. Wise, of her undivided interest in the variety store property.

In the trial court and before us, appellee argues that it is true that appellant conveyed to him her interest in the department store property as part of an arrangement to adjust the title to certain commonly owned tracts of land so that each — appellant and appellee — would become the sole record owner of an entire tract of land. Appellee’s position is that he was to be the record owner of the variety store property and the appellant was to be the record owner of the “home place.”

Although appellee’s position is that he conveyed his undivided interest to appellant in furtherance of the arrangement under which appellant conveyed her undivided interest in the store building property to him, he contends that this is only a part of the arrangement. The balance of the arrangement, he claims, was that, as between the parties, these transactions were fictitious, and that each vendor was, in truth and fact, to remain the owner of the undivided interest conveyed. At some time in the future, according to appellee, it was contemplated that deeds would be executed to place the parties in the condition they were in before the conveyances.

These contentions are not admitted by the appellant, Jake Wise Johnson, either in her answers to interrogatories or in her sworn testimony. Parol evidence was admitted on the trial of the case to determine the true nature of the transactions. The trial court, in an oral opinion at the conclusion of the trial, found that there was a disparity in the value of the pieces of property conveyed and that the transaction was “for the convenience of the parties, with the purpose of financing their own individual interests.” The trial court commented on the testimony of Mrs. Stanfill, the mother of the plaintiff and defendant, who characterized the transaction “as a loan of the property.” The trial court concluded that it was not the intention of the appellee and the appellant to make a permanent transfer of the property, and rendered judgment setting aside the transfers.

Parol evidence should not have been admitted to enable the plaintiff to [536]*536prove that the conveyances under attack were simulations. In Massey v. James, 155 La. 977, 99 So. 718, it was said, at 99 So. 719:

“As between the parties to a public act, it is the settled jurisprudence of this state that parol testimony is not admissible to show simulation. Simulation admits of no other proof between the parties to a contract than a counter letter or something equivalent thereto.”

The Massey case, along with others, was cited in a comment in 17 Tul.L.Rev. 469, where the author summarized the jurisprudence :

“In those cases where it is sought to set aside the sale of immovable property on the ground that the sale was simulated, the parties to the transaction cannot introduce parol evidence to prove the simulation in the absence of a charge of fraud or error. The only way in which the parties to the transaction may prove the simulation is by means of a counter letter or something equivalent thereto.”

The admissibility of parol evidence to annul an authentic act or to vary a recital of consideration is the frequent subject of litigation and comments. See 29 Tul.L. Rev. 22, 21 La.L.Rev. 680, 14 La.L.Rev. 704 and 3 La.L.Rev. 427.

On the other hand, the defendant-appellant, attempting to sustain and to maintain the validity of an authentic conveyance, does not violate the parol evidence rule by showing that the true consideration for the transfers (the execution of deeds by each conveying undivided interests in different property to the others) is different from that expressed in the instruments. C.C. 1900; Citizens Bank & Trust Company v. Willis, 183 La. 127, 162 So. 822.

In the Citizens Bank & Trust Company case, the court held that nothing in C.C. 2276 1 prohibited the introduction of testimony to show that the real consideration for a sale was not the $3000.00 cited in the deed, but an agreement by a son to support his mother.

If plaintiff’s case is one in which he is alleging an agreement with his sister, the defendant, that she would convey to him the interest he formerly owned in the “home place,” he is again prohibited from introducing parol evidence to show the agreement. Lawrence v. Claiborne, 215 La. 785, 41 So.2d 680; Marionneaux v. Edwards, 4 La.Ann. 103; see C.C. 2440.2

Therefore, the judgment of the district court is reversed, and there is now judgment in favor of the defendant, Jake Wise Johnson, and against the plaintiff, George W. Wise, rejecting his demands. Plaintiff-appellee is cast for all costs. The property affected by this judgment (C.C.P. 2089) is:

The house and lot formerly occupied by Mrs. Mattie Wilkinson and being the same property acquired by Dr. W. T.

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Related

Quinn v. Stafford
357 So. 2d 628 (Louisiana Court of Appeal, 1978)
Bell v. Bell
339 So. 2d 1333 (Louisiana Court of Appeal, 1976)
Brown v. Womack
362 F. Supp. 1110 (M.D. Louisiana, 1973)
Stanfill v. Johnson
258 So. 2d 141 (Louisiana Court of Appeal, 1972)

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Bluebook (online)
241 So. 2d 534, 1970 La. App. LEXIS 4709, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wise-v-johnson-lactapp-1970.