Lavedan v. Jenkins

The opinion of the court was delivered by Miller, J. This suit is brought by plaintiff to compel compliance with an agreement of defendant to purchase property. The defence is plaintiff has no title to the property he tenders defendant. From- a judgment against defendant she appeals. In 1867 Edward Owen made a donation inter vivos of this property to his wife. With the authorization of her husband, the donor, the wife sold it. From her vendee by successive conveyances the property was acquired by plaintiff, and by him agreed to be sold to defendant binding herself for the payment of the price. The objection to the title urged by defendant is, that the donation subject to revocation by the terms of the Oode is still liable to be revoked by Owen, the donor, yet living, or subjected to reduction if in excess of the disposable portion by his heirs. The defence supposes the concurrence of Owen, the donor, in the sale made by his wife, and his joining in that sale is no impediment to a recovery by him or his heirs hereafter from those who bought the property and paid the price on the faith of that sale. Under our law donations between the spouses are revocable, and if not revoked, are subject to reduction, if at the donor’s death they are found to be in excess of the disposable portion. Hence, if the title to the property involved in this controversy depended simply and only on the donation by Owen to his wife, the defendant would have the basis to refuse payment of the price stipulated for a good title; Civil Code, Arts. 1749, 1750, 1502. But if this donation has been revoked and defendant’s title is based on a sale in legal effect by the donor, the objection fails. Under the Code there is no form prescribed for the revocation of a donation. The jurisprudence under the Napoleon Code, containing the same article on the subject of the revocability of donations is: that the revocation may be deduced from the act of the donor manifesting the intention. The revocation may be tacit: “ Quand a la revocation tacite elle est susceptible de se manif ester par toute act manifestant Vintention du testa-teur de revenir sur ce qui avant faite en faveur de son conjoint.” Napoleon Code, Art. 1096; Laurent 15, par. 331, 332; 4 Boilleux, [730] p. 280; Code Civil Annoté, Fuzier Herman 2, p. 940, Nos. 35, 39. Thus a subsequent donation, mortgage, sale or other act of the donor inconsistent with the donation, annuls it. The revocation and subsequent disposition by the donor may be by the same act. If the donor sells, the sale itself is a revocation of the thing previously donated. Our Code has l’ecognized the tacit revocation presented by the commentators on the Napoleon Code. Succession of Hale, 26 An. 260. It is claimed here that no revocation of the donation of Owen to his wife can be deduced from his joining her in the act of sale to the author of defendant’s title. It is urged that sale was of her property, hence conveyed only the property subject to his right of revocation, and the action of reduction of the forced heirs. As to him it will hardly be contended he could join his wife in selling and obtaining the money of a purchaser and then wrest from him the property on the ground the wife had no title to convey, or rather a title the husband could destroy at his pleasure. The sale by the wife was under the authority of the husband to his agent, “ to consent to and authorize in the' husband’s name his wife to sell the property recorded in her name.” The agent intervenes in the act, the sale is made, and the purchaser pays the price with the confidence he gets a perfect title. The acts and conduct of a man on which another has acted in acquiring or parting with property are to be interpreted, and bind according to their natural import. It is obvious the purchaser in this case paid his money on the implicit faith he was getting a full title for all time to the property; that was the faith authorized and invited by the husband and by that he is bound. We can conceive of no clearer case of an estoppel than that which is opposed to any claim of the husband to this property. If the husband, with full power to revoke the donation and sell the property free from any claim of the heirs, has concurred in a sale which he is estopped from disputing, will not that sale be held equally conclusive on his heirs? Will they be admitted to urge that the sale was only of the wife’s interest, that is, passed a title the husband could destroy at the moment after the purchaser paid his money, or at any time; and, of course, a title which no sane man would buy for a full price, or indeed at any price. If Owen, the father, could not in this case with one hand authorize the sale and thus invite the purchaser to pay his money and with the other pos [731] sess himself of the property, on the ground that the sale passed to the purchaser but the shadow of a title, it is not easy to see that the heir could set up a pretension that would be viewed as an attempted fraud on the purchaser if advanced by the father. Aside from this aspect of the case, it must be borne in mind that Owen had the right to sell free from any claim of the heirs. At any moment he could revoke the donation, and a sale by him was a revocation. It was not necessary to introduce his wife in the act of sale. Hers was but a nominal ownership; that is, susceptible of termination at the husband’s pleasure. In his power to the agent to concur in and consent to the sale the property is described as that standing in his wife’s name. The language is that appropriate to a mere paper title. In this view we have the case of a man with power to sell free from any claim of the wife or her heirs, authorizing that sale by his wife, and by his agent concurring in that sale. It certainly seems difficult to distinguish between a sale made by Owen himself and that to which he consents, made by his wife, of property which he had the right to sell and his wife could not sell without his participation. Ordinarily, any assent by the owner to the sale by another of his property, as, for instance, if the owner signs the act as a witness, protects the purchaser against any claim by the owner. In this view the authorization by Owen to that sale is the same as if he sold himself, and his sale, it must be conceded, would be a complete effacement of the previous donation to his wife, and of all claims she or her heirs could rest on it. It is urged we can not hold this sale to be made by Owen, because made in the wife’s name by his authority. That is the form of the act. That form is consistent with the purpose of Owen to sell and of the purchaser to buy the property as that of Owen. He had the right to sell. But as his wife stood on the records as owner, it was deemed proper to have her sell with his consent. It is as certain as any conclusion can be predicted on human conduct that Owen designed to sell and the purchaser designed to buy the property in the usual sense; that is, not property that Owen could take back in the same breath that he consented to the sale. We think the act carried out that intent, and to hold otherwise would be to make mere form subserve a purpose never intended, and the opposite to the actual intentions of the parties. We view the act as in legal effect a sale by Owen, and upheld besides as such by an estoppel [732] which binds him and his heirs. In our conclusion we threw out of view the paper executed by Owen and his child affirming the sale. It denotes his appreciation of the force which, in our view, attaches, to the sale itself. The heirs are creditors of the ancestors in a certain sense for their legitime. Civil Code, Art. 1502; Croizet’s Heirs vs. Gaudet, 6 Martin, 529; Rachal vs. Rachal, 4 An. 501. As such they can attack any donation of their father in excess of their disposable portion. They can not contest sales made by their ancestor. Owen had a perfect right to sell without invading their rights. To suppose they can question the sale of the property, made in this case with the authority of the father, is, in our view, to disregard the purpose and effect of the act, and any such pretensions on their part could succeed on the theory only that their father had perpetrated a fraud and they can profit by it. It has been the subject of some discussion whether, when the donation is subjected to the legal or conventional return, the property became that of the donor, freed from the action of the heirs to reduce donations. Our courts have held the return effaced the donation, and hence the heirs would have no action to reduce in respect to the property. Civil Code, Art. 1559, par. 4; Scudder vs. Howe, 44 An. 1103. There can be no question the revocation of the donation by one to. the other spouse brought the property back to the donor the same as he had made no donation. In this case the revocation and sale by the donor was by the same act. Civil Code, 1749; Abes vs. Davis, 46 An. 819. it is therefore ordered, adjudged and decreed that the judgment, of the lower court be affirmed, with costs.