#### Rene F. MORGAN et al. v. Mrs. Nettie HATHAWAY.

No. 3890.

Court of Appeal of Louisiana. First Circuit.

Dec. 10, 1954.

Rehearing Denied Jan. 28, 1955.

*170Scallan E. Walsh, Baton -Rouge, for appellants.

John B. Smullin, Baton Rouge, for appel-lee.

LOTTINGER, Judge.

Petitioners claim to have inherited from their father, an undivided one-half interest in certain property comprising about fifty acres, and filed this suit seeking to be adjudged owners of an undivided one-half interest therein. The Lower Court rendered judgment for defendant and dismissed petitioners’ action. An appeal was taken, to the Supreme Court, 225 La. 367, 72 So.2d 880, but it declined jurisdiction as the amount in dispute was less than the $2,000, and the matter was transferred to this Court.

The facts show that, by acts of sale dated September 11, 1935, Mrs. Mittie Ayer conveyed to Mrs. Zula Penny Morgan, wife of Frank Morgan, a tract of land containing fifty acres. The consideration of the act of sale was the assumption by the purchaser of a promissory note in the sum of $125, and the stipulation in the act of sale that the purchaser promised vendor a permanent home for the balance of her natural life. Though both the vendor and the purchaser were married at the timé, neither of their husbands appeared- in the act of sale. The act of sale did stipulate, however, that the purchaser, Mrs. Morgan, was purchasing the property with her separate and para-phernal funds.

On December 10, 1935, three months later, Mrs. Zula Morgan conveyed the same property back to Mrs. Mittie Penny Ayer, the consideration for this transfer being the assumption by Mrs. Ayer of the same promissory note which' was part of the consideration of the original sale.

Mrs. Mittie Penny Ayer died, and by testament bequeathed the property to Mrs. Nettie Hathaway, her niece and the defendant in the present suit. By judgment of possession of October 30, 1939, the defendant was sent into possession as owner of the said property..

This suit was instituted by the children of Frank E. Morgan seeking to be decreed owners in indivisión of an undivided one-half interest in the said property. Their claim is predicated on the fact that their father was married to and living with Mrs. Zula Penny Morgan at the time Mrs. Morgan purchased the property from Mrs. Ayer, and that, by virtue of the settled law of this state, upon acquisition of the property by Mrs. Morgan the said property immediately became the property of the community of acquets and gains existing between their father and Mrs. Morgan. This presumption is. a strong one and must be overcome with sufficient evidence.

The defendant, however, contends that the property was purchased with the separate funds, of Mrs.'.Morgan, and that the *171property was administered solely by Mrs. Morgan. She claims that the property became the separate property of Mrs. Morgan with a right of Mrs. Morgan to dispose of same without the assent of her husband.

Although there are several claims whereby each of the parties assert their rights in this matter, we believe that the important point for consideration is the fact that the defendant introduced into evidence an affidavit executed by all the petitioners wherein the petitioners acknowledged that the property purchased by Mrs. Morgan on September 11, 1935, was the separate and paraphernal property of Mrs. Morgan, and further acknowledging her right to transfer the property, as per the act of sale of December 10, 1935, without the necessity of intervention of her husband, the petitioners’ father. The petitioners further acknowledged in the said affidavit that they never did have and do not claim any interest whatsoever in said property as their mother had acquired the same with her separate and paraphernal funds and having disposed of same in a direct and legal manner.

The record in this matter discloses that the verification of the petition was signed by petitioners’ attorney, upon his information and belief. No witnesses, nor evidence, was introduced by petitioners to refute the affidavit which was filed by defendant. The affidavit was made by the petitioners on November 25, 1939 and duly filed for record in Conveyance Book No. 423, folio 309 of the Conveyance Records of the Parish of East Baton Rouge, the parish where the property is situated.

The petitioners claim that the affidavit should not be considered in this matter because of the holding of the Orleans Court of Appeal in Succession of Valdez, 44 So.2d 151. However, in that case the allegations of the document were successfully overcome by the party who signed same when he explained to the Court that he signed the document through ignorance of the facts.

The petitioners in the present case have not asserted that they executed the affidavit through error or ignorance. Not one iota of evidence has been introduced to contradict the affidavit, except, of course, the argument of their learned counsel.

In Duncan v. Duncan, 26 La.Ann. 532, which is similar to the present suit, the Court said:

> “The defense is, we think, fully made out. The written instrument, in the nature of a counter letter, not denied by the plaintiff nor in any manner impugned by him, is an effectual bar against the plaintiff’s pretensions to ownership of the property.”

The Lower Court, in its reasons for judgment, stated:

> “The plaintiffs did not appear as witnesses in this case, nor did they verify the petition by which the suit was instituted. Counsel for defendant offered an affidavit identified as D-ll of record in Book 423, folio 309 of the conveyance records of this parish wherein all of the plaintiffs herein, who are the only people who could claim any interest in said property by inheritance from Frank E. Morgan, appeared before Clyde W. Thurmon, a notary public and solemnly declared that their father, Frank E. Morgan, died on December 22, 1937, that he was married but once and then to Mrs. Zula P. Morgan, that they are the sole issue of such marriage; that their mother purchased the property which is basis of this suit from Mrs. Ayer ‘with her separate and para-phernal funds under her separate control and administration, * * *' that their mother sold the property to Mrs. Ayers and that—

> “ ‘They further declare and acknowledge that they never did have and do not claim any interest whatsoever in said property, she having acquired the same with her separate and paraphernal funds and having disposed of same in a direct and legal manner.’ ”

Although the presumption in favor of the community raised by Article 2402 of *172the LSA-Civil Code Í9 a strong one, we feel that the affidavit, standing uncontrar dieted, was sufficient to overcome that presumption. The petitioners, therefore, have failed to prove their case, and the judgment of the Lower Court will be affirmed.

For the reasons assigned, the judgment of the Lower Court is affirmed, all costs to be paid by petitioners.

Judgment affirmed.

CAVANAUGH, J„ concurs.

ELLIS, J., concurs for reasons stated by CAVANAUGH, J.

CAVANAUGH, Judge

(concurring).

I concur in Judge Lottinger’s opinion but I think that the crucial point in the case is whether or not there was a real conveyance' of the property between Mrs. Mittie Ayer to Mrs. Zula Penny Morgan to definitely fix the status of the land in the community of Mrs. Zula Penny Morgan and Frank E. Morgan. When the testimony of Mrs. Morgan is analyzed and considered along with the letters she wrote to her sister, Mrs. Ayer, as well as the letter from Frank E. Morgan to Mrs. Ayer dated December 6, 1935 (Tr. 52), together with the recital in the deed executed by Mrs. Morgan on December 10, 1935, it conclusively shows that the last instrument or deed dated December 10, 1935, was merely a retrocession of the land, the title to which the testate, Mrs. Ayer, had placed' in her sister, Mrs. Morgan. This is evident by the following additional clause inserted in the deed:

> “The purpose and effect of this deed is to re-transfer and replace the title to said property in the name of the said Mrs. Ayer in the same condition, as it was when transferred to the present vendor, it being her separate para-phernal property, inherited by her.”

The letter from Frank E. Morgan to Mrs. Ayer, dated December 6, 1935, just four days before the transfer was executed by his wife, Mrs. Zula Morgan, reads:

> “I have your letter and also the notation made by Tom Ed. I will have the deed drawn up as soon as Zula can go to the court house and will send it to you, transf erring the place back to you. But I advise you first, last and forever, don’t put this on record until Tucker gives up the note. He is trying to hold it to beat you out of the place and has showed.it plainly to me by not acting square and answering some of my letters.

> “You had better see him and ask him if he is going to force you to hire a lawyer to get it out of his hands, and the sooner the better.”

“A retrocession is not a new title: A re-trocession means the restoration of an ancient title to a-true owner. Such an act confers no new title, it merely recognizes and confirms the existing title in another.” LSA-Civil Code, Article 2272 et seq.; Payne v. Nowell, 41 La.Ann. 852, 6 So. 636; Amet v. Boyer, 43 La.Ann. 562, 9 So. 622.

“Although an act be in the form of a sale, yet from the circumstances and the stipulations it contains, it may be manifestly a retrocession.

“A retrocession may be made by the voluntary act of the parties, where the rights of third persons are not prejudiced thereby.” Chretien v. Richardson, 6 La.Ann. 2.

I know of no law which would prevent two sisters from dealing with the separate property of one as was done in this case and which was never intended to be transferred to the community existing between Zula Morgan and her husband, Frank EC Morgan.

We know that property purchased during the marriage is presumed to be community property and it takes strong and substantial evidence to rebut the presumption, and that the wife has to prove that she *173bad. tbe separate ' funds to purchase the property and tbe source from whence they came as well as that they were under her separate management and control. That law is applicable to real transactions and does not apply when the evidence unequivocally shows that there was no intention of the husband and wife to purchase the property. The transaction in the case at bar is entirely different from the transactions in Houghton v. Hall, 177 La. 237, 148 So. 37, and Johnson v. Johnson, 213 La. 1092, 36 So.2d 396. The proof here is not parol, but is in writing.

I find the following in Volume 17, page 462, Tulane Law Review:

> “In a simulated contract there is an apparent expression of the will creating a false belief to the external world and a true representation of the will which remains a secret between the ■contracting parties. The secret act which is reduced to writing is called a counter letter. Inasmuch as parol evidence cannot be admitted either against or beyond what is contained in an authentic act, the only way in which the verity and reality of an authentic act may be attacked by the parties to the act is: (1) by means of a counter letter, and (2) by the answers of the opposing party to interrogatories on facts and articles. However, this 'rule of exclusion is not binding on third parties. It is also important to note that this rule applies to movables as well as to immovables.

> “Where a counter letter' is duly recorded it affects all persons, even creditors, from the time of recording. An unrecorded counter letter can have no effect except between the parties. But á counter letter is nonetheless effective between the parties because it is under private signature. In order for a document to constitute a counter letter it is not necessary that it should be contemporaneous with the act attacked. It is sufficient to set aside the act if the writing offered against it, of whatever date, contains an admission that the alleged sale was a simulation. Nor is the plaintiff in such action estopped by any stipulation in the act, or by the warranty contained therein, from proving the falsity of the act. However, where a sale has a real cause it cannot be invalidated by the production of a counter letter. The counter letter is valid against all persons except creditors and bona fide purchasers.”

I believe that the affidavit executed by the plaintiffs in this case is in the nature of a counter letter and clearly states that at the time it was executed they had no interest in the property and must be considered as an effective renunciation. Palmes v. Kuhn, 46 La.Ann. 906, 15 So. 167:

The deeds in question were executed in 1935. Plaintiffs’ father died in 1937. The testator, Mrs. Ayer, died in 1939. The will was probated according to the judgment in the record in October, 1939. This suit was not filed until October 22, 1949, or almost 14 year9 after the deeds were executed and 10 years after the affidavit or counter letter was signed. This affidavit had been on record since 1939. Although the counter letter or affidavit is under private signature it is none tbe less effective as a renunciation under Palmes v. Kuhn, supra.

If the deed from Mrs. Morgan to Mrs. Ayer dated December 10, 1935, cannot be considered as an acknowledged reinvestment of title in her sister, Mrs. Ayer, and if the defendant had properly pled the 10 years prescription acquirendi causa under Article 3478 of the LSA-Civil Code under that deed, we wouid have to sustain it because under the evidence contained in the record there was certainly good faith on .the part of Mrs. Ayer and she received a title translative of property, believing that she was being reinvested with the title to the property, which she had formerly conveyed. It goes without saying that plaintiffs’ father knew that the property had been conveyed back to Mrs. Ayer and that she had always had actual physical corporeal possession of the property. She continued to exercise actual corporeal possession of the *174property ■ after her reacquisition and that h^r possession continued in her husband, Gilbert Ayer, and Mrs. Hathaway, her niece, legatee of the naked ownership after her death. I do not understand why the defendant’s attorney did not plead the 10 year prescription under the deed executed by Mrs. Morgan to Mrs. Ayer. The plea urged is general and not specific. The court cannot consider it.

Succession of Drysdale, 130 La. 167, 57 So. 789; Middleton v. Grishman, 7 La.App. 353; Succession of Thompson, 191 La. 480, 186 So. 1.

Rehearing denied.

TATE, J., recused.

CAVANAUGH, Judge ad hoc by appointment.