Lagrange v. Barre

Simon, J. The object of this controversy, is to obtain the revocation and nullity of an act of donation inter vivos, executed by the plaintiff in favor of the defendants’ ancestor, on the 16th of September, 1834. He, therefore, demands that all the property by him given to the deceased, be restored to his possession and ownership; that he may be compensated for the rents and profits, wages and interest which said property may have yielded during the time he was deprived of its enjoyment; and that the defendants be also condemned to pay him $ 1,500 damages. The defendants answered that the donation was not a gratuitous, but an onerous one; that they have always fulfilled, and still are willing to fulfill all the conditions imposed upon their — 308 — ancestor by the said donation; that the plaintiff has not entirely divested himself of all he possessed; and that he has brought himself within the limits of the law, by reserving to himself enough for his subsistence. They further pleaded a reconven-tional demand against the plaintiff for the sum of $4,000, due them for having furnished him with all the necessaries of life from the date of the donation, in case judgment should be rendered against them in the premises. The district judge decided that the donation should be declared null, that the slaves thereby donated should be restored to the plaintiff’s possession and ownership', and that the defendants should pay him, jointly, a certain amount for the yearly hire of each slave, since the date of the-institution of this suit, as also the price of a tract of land comprised among the property donated, but since sold by the donee; and from this judgment the defendants have appealed. The evidence shows that the donation was executed on the 16th of September, 1834, comprising a tract of land and five slaves, with the following stipulated charge, to wit: “ De nourrir le donateur, de luifoumir le lit, Unge, feu, lumiere, sa vie durante, et encore a condition que si le donateur tomboit malade, ledit sieur Barré et ses domestiques lui donneront tous les soins que des enfans donneroient d leur pére, et le feroit visiter par le médecin de la maison, le tout sans qu’il puisse en rien couter au donateur” The tract of land was sold by the donee, in May, 1837, for the sum of $800; but the slaves are yet in the possession of the defendants, as heirs of the donee. The appellee’s claim is based upon the fact that the land and the slaves comprised all the property which he possessed, and that, consequently, the donation is void by the 1484th article of the Civil Code; and he also sets up that the heirs of the donee have neglected to comply with the obligations stipulated in the contract, of supporting and treating him as children should treat a parent. The defence rests upon the allegations of the donor’s not having entirely divested himself of all he possessed, as he reserved to himself enough for his subsistence ; that the donation is not a gratuitous, but an onerous one; and that defendants have — 309 — always fulfilled the conditions therein stipulated; and also upon the plea of prescription of five years. Hence, two principal questions arise: 1st. Does this donation come within the meaning of article 1484 of our Code, as being prohibited by law? And 2d. Is the action to have it declared null, prescribed by the lapse of five years from its date ? I. Art. 1484 of the Civil Code is in these words: “ The donation inter vivos shall in no case divest the donor of all his property ; he must reserve to himself enough for subsistence ; if he does not do it, the donation is null for the whole.” The terms of this law appear to throw a certain incapacity upon every citizen to dispose and divest himself of all his property by donation inter vivos, and declare that such donation shall be null (not reducible), if he has not reserved to himself enough of his property for subsistence. The expression, reserve to himself, cannot be understood to mean that he should rely upon others for his subsistence, but that he should himself keep in his possession and ownership a sufficient portion of his property to provide for his subsistence. This seems to be the spirit of this law, as it would be vain to say that the mere promise of the donee to support the donor is a sufficient reserve in the sense of article 1484, since the same obligation, without any contract on his part, is imposed upon him by article 1547, which gives to the donor the right of revoking the donation,'if the donee refuse him food zohen in distress — “ lui refuse des alimens, lorsqu’il est dans le be-soin.” Thus, it is manifest, that the law maker never intended •that on a simple stipulation of alimony, a man should divest himself of all his property by donation inter vivos. He must keep a sufficient amount for his subsistence; and we are confirmed in this opinion by article 1520 of the Civil Code, which does not permit that a donor should reserve to himself the usu-fruct of the property given; and this is certainly more than a mere stipulation, or promise of alimony, on the part of the donee. Article 1484 of our Code appears to have its* originjin the 69th law of Toro, the text of which is: “ Ninguno pueda hacer donación de todos sus bienes, aunque la haga solamenté\de los pre-sentes.” Noviss. Recop. lib. 10, tit. 7, ley 2. Instituto Civil y — 310 — Real, (Berni) p. 86, lib. 11, tit. 7. Asso y Manuel, Institu-ciones del Derecho Civil de Castilla tom. 2, lib. 11, tit. 9, § 11. Fuero Ileal, lib. 3, tit. 12, ley 6. Gomez, in his commentary on the law 69 de Toro, in speaking of the portion the donor must reserve to himself, informs us that it must be : “ Res vel quantitas notabilis, ct non ita parva, tenuis et minima.” Febrero Noviss. ó Lib. de Jueces, tom. 2, cap. 22, § 5, commenting on the 69th law of Toro, says: “ La razón est porque ademas de quedarse el donante sin lo necesario para su manutención, se priva del derecho de testar, y se puede dar ocasión al donatario para que maquine la muerte del donante con el fin de apoderarse prontamente de sus bienes” And further, he says, that, “ No conviene en el orden publico que los hombres sean pródigos” So, also, it is found in Martinez, Lib. de Jueces, tom. 7, p. 176, § 98, in these words: “ Ninguna persona puede hacer donación de todos sus bienes aunque diga que la hace y sea solamente de los presentes ; y si la hiciere es nula e inofi-ciosa” It is perfectly clear irom these authorities, that the mere obligation on the part of the donee to support the donor is not sufficient to make a donation omnium bonorum valid, and as they are in concordance with our laws on this subject, we feel no hesitation in adopting the same doctrine. It has been urged, however, that the question is not new in our jurisprudence; and that a similar question was passed upon by this court in the case of Vick v. Deshautel, 9 Mart. 85, where a similar donation, with a promise by the donee to support the donor, was held valid. The quoted case does not decide any such thing; and if it did, it was rendered under the old Civil Code, in which no such prohibition is found, and the question does not appear to have been investigated under the Spanish laws then in force. Moreover, article 50, p. 220 of the Code of 1808 permitted the donor to reserve for himself the usufruct of the property by him donated; a disposition which is now prohibited by article 1520 of the new Code ; and, as we have often said, it requires more than one decision to establish the jurisprudence of a country, particularly when, in a solitary one, the point in controversy does not appear to have been thoroughly investigated and examined. The quotation from Febrero, relied on by the appellants’ counsel, to wit: “ Pero si el donante se — 311 — reserva para se por toda su vida el usufructo de sus bienes, (which is prohibited by our Code,) y los suficientes de que poder testar libre-mente, y el usufructo es competente para su manutención, será valida, como también si el donatario se obliga a mantener ál don-ante mientras viva, enterrarlo según su calidad y cumplir lo que disponga en su testamento” — rather shows that the mere obligation of the donee to support the donor, is not sufficient; that something else is necessary, consisting in the donee’s obligation to give effect to the dispositions contained in the donor’s last will or testament; and surely this necessarily implies, that the donor has reserved to himself some property which may be the subject of his testamentary dispositions — that is to say, “ los suficientes de que poder testar libremente” Now it is admitted in the record that, at the time of the donation, the donor was not possessed of any other property, im-movables or slaves, but that included in the act of donation. The appellants have not shown that he had any personal or immovable property which he could reserve to himself, and it is obvious that this donation was really one “ omnium bonorum” prohibited by our law. With regard to the point that the donation under consideration was not a gratuitous, but an onerous one, we think it is untenable. Under art. 1513 of the Civil Code, the value of the object given must exceed by one half that of the charges; and we agree with the judge a quo in the opinion that the annual rent and profits of the things donated, not to speak of their value as estimated in the contract, are clearly shown to be more than double the amount of the charges imposed upon the donee. II. We now come to the question of prescription. The appellants’ counsel relies upon art. 3507, of the Civil Code, which says: “ The action of nullity, or recission of contracts, testaments, and other acts; that for the reduction of excessive donations, &c, are prescribed by five years, when the person entitled to exercise them is in the State, and ten years, if he be out of it.” Disposing first of the question arising from the second provision of the law ré-lied on as applicable to this case, we have only to say; that this is not an action for the reduction of an excessive donation ; that an inofficious or excessive donation, means the disposition which — 312 — fathers and mothers, or other ascendants, make of their property to the prejudice of their descendants, beyond the proportion reserved to them by law (Civil Code, art. 3522, § 21); that such donations retain all their effect during the life of the donor (Civil Code, art. 1490); and that the action to have them reduced, only belongs to the forced heirs of the donor, to be exercised, after his death, against the donee or his heirs. Civil Code, arts. 1489, 1491, 1504. See also 1 Yazeille, Prescription, page 224, nos. 545, 546 et seq. There remains then the first provision of art. 3507, which, the appellants contend, is applicable to this case. We have already seen that art. 1484, under which this action was instituted, prohibits this kind of donation in an absolute manner. It says that it shall be null for the whole; and thus declares that no legal effect whatever can be given to such dispositions. Febrero, loco citato, says: “ No conviene en el orden publico que los hombres sean pródigosand we have already said that the terms of the law throw a certain incapacity upon every individual of disposing, and divesting himself, of all his property by a donation inter vivos. Art. 12 of our Code says that, “whatever is done in contravention of a prohibitory law, is void, although the nullity be not formally directedand, in the case of Gasquet v. Dimitry (9 La. 590), this court, in examining a question relative to a contravention of a prohibitory law, in which the nullity of the act is not formally expressed, said: “ In every well organized State, those laws which establish the order of hereditary succession, which regulate the capacity to dispose by last will, (here it is by donation inter vivos,) would seem to stand first in rank of those rules involving the great interest of public order, and essential to the welfare of society.” Here, the nullity of the disposition is expressly declared in the law itself, and it would seem strange indeed that, not withstanding ,this positive provision, persons incapacitated by law from making a particular donation — - from extending their liberality, nay, their prodigality to divesting themselves of the whole of their property, should become capable, after five years from the date of their donation, under a law which declares the act to be absolutely null. The maxim, “ Quod ab initio viliosum est, non potest tractu temporis convalesce — 313 — ere,”3is clearly applicable to'the matter at issue. Merlin, Repertoire, verbo Prescription, s. 1, § 6, art; 1, says: “ Quand le litre est f rappee d’une nulliti absolue, point de prescription and Vazeille, Prescription, No. 540, expresses- his positive opinion: “ Que les conventions el lesB dispositions contraires aux bonnes mceurs, ou a I’ordre public sontfrappi.es d’une nulliti qu’aucune prescription ne sauroit effacer.” See also Troplong, Prescription, No. 132, That the nullity pronounced by art. 1484 is based upon motives of public order, and that the act done in contravention of its prohibition is against good morals, can hardly be doubted, and will be easily understood. Is it not against public order, as Febrero says, that a man should extend his prodigality to divesting himself of the whole of his estate ? Is not excessive prodigality injurious to the prosperity of families, and to the good order and Welfare of society? It is'not against good morals that a citizen should strip himself of his^means of subsistence, and turn himself out as a beggar upon the community; or, if he is to depend upon the indefinite promise of another, that he should have to rely not- only upon the will and caprices of a Stranger, but also to subject himself to the contingency of the latter’s always possessing sufficient means to provide him with the necessaries of life ? The 11th art. of our Code says, that individuals cannot, by their conventions, derogate from the force of laws made for the preservation of public order or morals. Such derogation, according to art. 12, to a prohibitary law, is void. The law on which this action is based, declares the absolute nullity of the disposition, and we are of opinion that such nullity cannot be removed, nor cured by the prescription of five years. On the whole, we think that the judgment appealed from is fully supported not only by law, but also by the evidence, and that it-'should not be disturbed. Judgment affirmed. Footnotes [*] Forcelle, for a re-heariiig. The donation should not be annulled. Plaintiff has proved that he had, at the timo of the donation, no other immovables or slaves; but he has not shown, that he had no other personal property. The onus proiandi is on the plaintiff. See Toullier, vol. 4. p. 96, nos. 76, 77, 84, in his commentary on art, 911 of the Code Napoleon, which is identical with art. 1478 of the Civil Code of this State. Re-hearing refused.