Liautaud v. Baptiste

Simon, J. Without being necessary to inquire into the facts of simulation established by the parol evidence found in the record, which parol evidence comes up subject to all legal exceptions, (reserved by the defendant’s counsel, in the same manner as if he had taken a bill of exceptions,) and will become the subject of a farther inquiry as to its admissibility, the first question which presents itself to our consideration, is, what were the legal rights of the plaintiffs, as children and heirs of Ferdinand Liautaud, at the time of the sale of the property in dispute to Marcelile Baptiste. It cannot be controverted that, in April, 1823, Ferdinand Liautaud, had no legitimate children ; and that the plaintiffs, and their brother and sister, though duly acknowledged by an act passed in 1818, had no other rights to exercise against the estate of their natural father, than those of illegitimate children, who, by law, are only entitled to claim alimony. Civ. Code, arts. 224, 257, 913. They were not the forced heirs of Liautaud, and could raise no pretensions to any part of his estate. But they were legitimated by the subsequent marriage of their natural father with the defendant; and the question occurs, what rights have they acquired by this subsequent legitimation 1 By art. 219 of the Civil Code, children legitimated by a subsequent marriage, have the same rights, as if they were born during marriage — in the French text, “ nés de ce mar — 450 — iage.” If this article stood alone, it might, perhaps, be said, with some force, particularly under the English and governing text of our law, that the rights acquired by legitimated children, have a retroactive effect, revert back to the time of their conception; and that, therefore, their right to inherit, or to claim their legitimate portion as forced heirs, has effect against the gratuitous dispositions made by their parents since the conception of their children, though before their legitimation. But on referring to art. 948, we see clearly that the law has limited the right of legitimated children to their talcing only the successions which are opened since the marriage of their father and mother; and under art. 1556, all donations inter vivos, are to be considered as revoked up to the disposable portion by the legitimation of a natual child by a subsequent marriage, if the child be born since the donation. Now, it cannot be pretended that the plaintiffs were born since April, 1823 ; and, if the act of sale attacked in this suit as simulated, instead of being, as alleged, a fictitious sale, were a donation inter vivos, it is clear that the plaintiffs could not attack it, nor claim its revocation. The gratuitous title given by their father would stand and have its legal force and effect, notwithstanding the subsequent rights acquired by the children, by virtue of their legitimation. Toullier, v. 2, No. 929, upon an article of the Code Napoleon similar to ours, says : “ II faut observer que l’effet de la legitimation rlest point rétroactif et qu’elle ne remonte pas a la naissance de Venfant. La legitimation n’opére son ejfet que du moment oú existe le mariage qui Va produite. Tout ce qui s’est passé dans la famille du pere ou de la mere avant leur mariage est étranger aux enfans legitimes par ce ?nariage.” This doctrine is also entertained by Merlin, verbo Legitimation, sect. 2, § 3, art. 4, who gives his opinion on the art. 960 of the Code Napoleon, corresponding with the 1556th of our Code. By Grenier, Donations, vol. 1, No. 193. ByFavard de Langlade, verbo Legitimation, § 3. By Dalloz, verbo Filiation, chap. 3, sect. 1, § 9, who says : “ Leur age, comme legitimes, ne compte que du jour de la legitimation; tous droits acquis antérieurement sont bien acquis.” See also, Journal des Audiences, v. 8, Supp. p. 65. Ib. v. 9, p. 177. It results, therefore, from the provisions of our law, as well as from the weight of the authorities above quoted, that — 451 — ‘Liautaud was at liberty to dispose of his property as he pleased, in April, 1823; that the sale made then to Marcelite Baptiste, considered either as a sale, or as a disguised donation, or as a simulated conveyance, or in any other manner, cannot be disturbed by persons who had then no legal right to claim against, or to exercise over the property ; and that if Marcelite Baptiste had died before disposing of the property, it would have passed to her heirs, without the plaintiffs having any legal capacity to claim or recover any part thereof. But, instead of keeping the property so as to let it go to her legal heirs, Marcelite Baptiste conveyed it to the defendant; and hence, it has been strenuously contended, that this conveyance, also simu lated, was passed in execution of her previous agreement with the vendor, and for the purpose of transferring the property to the plaintiffs and the other children, through their mother. This sale was passed after the legitimation, and if the object thereof, were really such as represented, it would have been more simple to execute the sale directly in favor of the children, to which there was then no possible impediment. However it may be, Marcelite Baptiste gave an absolute title to the defendant, who acted for herself and in her own name. It is clear, thereforé, that the plaintiffs possessed no right at the time that the first sale was executed by Liautaud to Marcelite Baptiste; that they only acquired the rights of legitimate children in August, 1826; and it is obvious that the only title they can set up now, is as heirs of the deceased, since the latter period. They have nothing to do with what took place previously; they cannot disturb the acts of their father, and must take his succession in the situation in which they found it at the time of his death, without being able to attack' any disposition of his property made previous to their legitimation. In other words, they merely represent the deceased, and are only entitled to exercise his rights. If so, how can they be admitted to pretend that the sale from Marcelite Baptiste to the defendant, is the consequence of that from the deceased to Marcelite ? If the simulation alleged against the first sale, continued in the second, does this last circumstance give the plaintiffs a greater or better right to claim the property from the defendant, than they would have had against Marcelite Baptiste or her heirs, if she had not — 452 — parted with her title to it, and could Liautaud himself have set up ar.y claim to the property as against Marcelite Baptiste, or the defendant, who acquired her rights, on the ground of simulation ? On this part of the case it is proper to remark, that this action is based on the allegations, that the two sales complained of are fictitious and simulated. The petition contains no allegation of fraud or error ; and we are called upon to give effect to a pretended agreement, said to have existed between the parties, by which it was understood that, notwithstanding the sale, the vendor should always remain the owner of the property, which should be reconveyed to him by the vendee, whenever he should require Marcelite Baptiste to do so, and that in case of his death, it should be reconveyed to his children. There is no rule of evidence better known and settled in our jurisprudence, than this, that the fact of simulation admits of no other proof between the parties to a contract, or their representatives, lhana counter-letter, or something equivalent thereto. In 2 Mart. N. S. 14, this court said, that where a legatee, representing the ancestor, claims under and through him, he has no other means of avoiding the contract but those which the ancestor possessed ; and the principles of law recognized in the case of Badon v. Badon, 4 La. 169, are fully applicable to the present case. This has been the general and uniform course of. our jurisprudence (6 Mart. N. S. 206. 8 Ib. N. S. 448. 3 La. 4. 4 Ib. 351); and in the case of Delahoussaye v. Davis' Heirs, §c. 19 La. 412, we again recognized the rule, that a simulation, not fraudulent, cannot be proved by parol, as between the parties. Civ. Code, art. 2256. Merlin, verbo Simuation. Duranton, v. 13, Nos. 338, 339. Toullier, vol. 9, § 233, 234, 247. It is clear, therefore, that Liautaud himself would have vainly attempted to prove that his sale to Marcelite Baptiste was feigned and simulated, in any other manner than by producing a counter-letter ; and that the parol evidence introduced in this case, would have been rejected. If so, surely, the appellees, who represent him, and claim through and under him, cannot be allowed to avail' themselves of it. Under this view of the question, we must come to the conclusion that the appellees were precluded from attacking the contracts complained of on the score of simulation, unless they were — 453 — ready to establish it by written evidence ; and that the parol evidence excepted to by the appellant’s counsel, was improperly and-illegally admitted. The position, however, assumed by the appellees’ counsel, that the contracts complained of were in the nature of Jidei commissa, and prohibited by our law, has been insisted on with a good deal of plausibility; and we must confess that we were, at the first blush, impressed with the idea that it was the stronghold of their case. Further reflection, however, has enabled us to discover the fallacy of the argument, which consists in maintaining that, the' agreement between the deceased and Marcelite Baptiste, being a jidei commissum, prohibited by law, this infraction of the law can be proved by parol. This would perhaps be true, if the interest of the appellees, adverse to thq jidei commissum, had existed at the time of the act; and if the alleged disguised illegal disposition, having been resorted to, to defeat these acquired rights, stood in conflict with the exercise of them. But, as we have already said, their interest did not then exist; and it seems to us that they cannot, under the pretence that the contract by them attacked, was executed to cover a jidei commissum, be allowed to establish its simulation, and thereby give effect to the very act which the law has prohibited. And indeed, do not the appellees seek to enforce, in this action, the very jidei commissum by them complained of? Is not the true object of this suit, under the allegations of the petition, to give effect to the agreement pretended to have existed in their favor between the deceased and Marcelite Baptiste, and tohave been subsequently carried into execution by the latter, by the sale of the property in dispute to the defendant; and would not the judgment, which we are called upon to render, be, in effect, declaratory of the appellees’ right to recover under the very agreement by them treated as a jidei commissum ? Surely it would ; and we are constrained to declare, that they cannot be entitled to reap the fruits of a flagrant violation of the law, on the part of the person whom they represent, and under whom, and in whose right, they claim. Under the application of the maxim, “ De turpi causa non oritur actio J the law gives them no action to enforce it. In the case of Tournoir v. Tournoir et al., 12 La. 23, relied on by the appellees’ counsel, this court held, that the object of the law (Civ. Code, art. — 454 — 1507,) being to prevent the persons, whom it disables from re ceiving donations, from secretly enjoying them, all Jidei commissa, even those in favor of persons capable of receiving, are prohibited. This doctrine is certainly correct, but the case quoted is not analogous to the present. There, the proof was adduced by the party whose interest was adverse to the existence of the Jidei commissum; and was not introduced for the purpose of giving effect to the illegal disposition of the testator, but in order to defeat its object. Here, on the contrary, were wc to admit the evidence offered to prove the alleged simulation, the consequence would be, that, if the fact were sufficiently made out, the appellees would be allowed to recover the property which was the object of the re-probated agreement by them called a Jidei commissum. Such a doctrine cannot be sanctioned by this court. Upon the whole, we think the lower judge erred, in receiving the parol evidence introduced by the plaintiffs to prove the fact of simulation, and in giving effect to the agreement declared upon in their petition. It is, therefore ordered, that the judgment of the Parish Court be reversed ; and that ours be for the defendant, with costs in both courts.