Maillot v. Wesley

Vookeies, J. This is an action of revendication, in which the plaintiff claims certain household furniture as property belonging to the succession of the late James 0. Logan. The defendant, in her answer, avers that she'acquired the furniture in question from the deceased, by donation inter vwos, accompanied by real delivery. “ The manual gift, that is, the giving of corporeal movable effects, accompanied by a real delivery, is not subject to any formality.” C. C. 1526. It is clear, therefore, that the Judge a quo did not err in overruling the plaintiff’s objection to the introduction of parol evidence, to prove the manual gift of the defendant. But we think he erred in excluding evidence offered by the plaintiff to prove that the donor and donee lived together in open concubinage. As our law does not permit either a replication or rejoinder, all matters of defence set up in the answer, must therefore be considered as open to every objection of law and fact, as if such objections liad been specially [468] pleaded; thus the plaintiff may resort to the exceptions of nonage, cover-ture, fraud, violence, and the like, without pleading them, because he is not permitted to reply. So in the present case, it was competent for the plaintiff to show, that the defendant was the concubine of the donor, in order to ascertain whether the donation of the furniture made to her, exceeded one-tenth part of the whole value of the donor’s estate" and if so, to reduce the same according to law. After a close examination of the case, we think the evidence is sufficient to sustain the conclusion of the Judge a quo in his solution of the question, as to the fact of the donation of the furniture to the defendant, accompanied by a real delivery. On this point, we consider the matter adjudged. It is therefore ordered and decreed, that the judgment of the court below be avoided and reversed; that the case be remanded for a new trial, touching the issue, whether the donor and donee lived together in open concubinage, in order that the rights of the parties litigant may be regulated in accordance with the requirements of the law. And it is further ordered, that the costs of this appeal be paid by the defendant and appellee, and those of the court below by the estate, except those arising hereafter, which are to abide the final determination of the suit.