#### BAKER v. BAKER.

No. 2709.

Court of Appeal of Louisiana. First Circuit.

April 4, 1945.

*515John Fred Odom and Fred G. Benton, both of Baton Rouge, for appellant.

Borron, Owen & Borron and J. Oliver Bouanchaud, all of Baton Rouge, for ap-pellee.

DORE, Judge.

On December 17, 1886, defendant and his father acquired forty acres of land situated in East Baton Rouge Parish for a recited consideration of $400; on December 13, 1890, defendant acquired his father’s undivided interest in the said land, for the recited consideration of $200. At the time of his acquisition, defendant was married to Georgiana Baker, thus making the property community property. On May 13, 1899, after a decree of separation from bed and board had been granted between Georgiana Baker and defendant they executed a notarial act of sale, for a recited cash consideration of $150, and transferred to Ronaldson & Puckett Co., Ltd., the said forty acres of land. After a decree of divorce between Georgiana Baker and defendant, on February 27, 1901, plaintiff and defendant were married. On October 21, 1902, Ronaldson & Puckett Co., Ltd., by notarial act of sale, for a recited cash consideration of $300, transferred to defendant the said forty acres of land. On May 14, 1942, plaintiff obtained a judgment of separation from bed and board against defendant.

After obtaining the judgment of separation “a mensa et thoro”, plaintiff filed the present proceeding for a partition by Imitation of the properties comprising the preexisting community, alleging that the forty acres of land purchased by defendant from Ronaldson & Puckett Co., Ltd., on October 21, 1902, was community property.

The defendant denies that the forty acres of land is community, setting forth that the deed of May 13, 1899, was purported and intended to be an act of mortgage or security to Ronaldson & Puckett Co., Ltd., for an account owed by the former community existing between himself and Georgiana Baker and was executed as a cash sale by him in error, neither he nor Georgiana Baker having received any consideration whatsoever, and that the deed executed on October 21, 1902, was a mere retrocession of the property to him, without changing the status of the property, he having been the owner prior to his marriage to plaintiff and never having divested himself of the possession and/or ownership thereof, and the retrocession was merely to clear the record and remove a cloud on his title.

On the trial of the case, the defendant sought to prove by parol evidence the allegations of his defense. Timely objection was made thereto and overruled by the trial judge. The trial resulted in a judgment in favor of the defendant, holding that the 40 acres of land did not belong to the community existing between plaintiff and defendant and that therefore plaintiff had no interest in the said property and was not entitled to a partition thereof. From this judgment plaintiff has appealed.

When defendant offered parol proof that the act of 1899 was confected through error, it appearing as a sale when he and his former wife believed it to be a mortgage given as security for the debt then owed by them to Ronaldso.-; & Puckett Co., Ltd., and that the act of 1902 was, after the payment of the debt then secured, a retro-cession thereof, without any effect on the status of the property, plaintiff objected to such proof for the reason that authentic acts make full proof against parties under Art. 2236 of our Civil Code, unless it be declared and proved a forgery, contending that nothing in the act of 1899 was contained therein showing it to be a “vente a réméré”, and that the sale of 1902 was an outright purchase for and on behalf of the community, which fact defendant was es-topped to show otherwise.

Parol evidence is not admissible to vary, contradict, or add to the stipulations of a written contract (in our case, authentic acts of sale) complete on its face, in the absence of fraud or error. Revised Civil Code Articles 2234, 2236, 2276, and case of Clark’s Ex’rs v. Farrer, 3 Mart., O.S., 247, and many others hereafter too numerous to list or mention.

A written instrument is only binding on parties and privies to it, and third persons are not estopped from assailing or contradicting its recitals — Succession of *516Murray, 41 La.Ann. 1109, 7 So. 126. The rule against parol evidence may be invoked by any one having an interest, and not alone by the person sought to be held on an agreement. Cooper v. Jennings Refining Co., 118 La. 181, 42 So. 766. The rule that parol evidence is inadmissible to contradict or vary the terms of the writing which the parties have drawn up to serve as the evidence of their contract applies only in suits between the parties to the instrument and their privies.

The question of the admissibility of parol evidence to contradict the written act resolves itself therefore as to whether the suit is between parties privy to the acts.

 A “privy” is one who has succeeded' to some right or obligation which one of the parties to the act derived through the act or incurred under it. The plaintiff is not a privy to the act of 1899 and is not concerned therewith nor with the parol evidence rule relating thereto, but is a privy to the act of 1902, because she was the wife of the defendant at that time, and the acquisition of 1902 is presumed to belong to the community. See Bank of Acadia v. Lafosse, S La.App. 616.

The plaintiff therefore is only concerned with the effect of the act of October 21, 1902, hence the only question presented to us for determination is whether or not parol evidence can be introduced to vary, contradict, or alter the recitals of that deed.

At the time of the confection of the act of October 21, 1902, plaintiff and defendant were married. The act of conveyance is authentic in form and recites that it was made for a cash consideration of $300 paid by the defendant and in no manner recites or discloses the history of the transaction by which the property had been formerly transferred to the vendor, Ronaldson & Puckett Co., Ltd., by the vendee. and his former wife, Georgiana Baker, and the acquisition of the defendant as a retro-cession by him for his separate estate and benefit and for his former wife, the property prior to the act of sale of May 13, 1899, being then owned in indivisión of one-half (%) to each, so as to indicate the nature of the consideration and/or the status of the property; nor is there any recitation in the deed that the acquisition by defendant was being made with his personal funds or other property belonging to him and that the property was being acquired for his personal and separate benefit. The act is a regular warranty deed executed in his favor without the mention of his former wife’s interest, translative of property, and for a stipulated cash consideration of $300, paid by him.

Under Article 2334 of our Civil Code, “Separate property is that which either party brings into the marriage, or acquires during the marriage with separate funds, or by inheritance, or by donation made to him or her particularly.”

Under Article 2402, of our Civil Code, it is declared that the community of acquets and gains “consists of the profits of all the effects of which the husband has the administration and enjoyment, either of right or in fact, of the produce of the reciprocal industry and labor of both husband and wife, and of the estate which they may acquire during the marriage, either by donations made jointly to them both, or by purchase, or in any other similar way, even although the purchase be only in the name of one of the two and not of both, because in that case the period of time when the purchase is made is alone attended to, and not the person who made the purchase.”

Under this Article, C.C. 2402, the presumption of law is that property bought during marriage in the name of either spouse falls into the community. This presumption can be rebutted when the purchase is made by the wife, but, said the "Supreme Court, through Justice Blanchard, in the case of Succession of Burke, 107 La. 82, 31 So. 391, 392, “when the husband, during the marriage, buys property in his name, intending it as an investment of his separate funds, to be held for his individual account, and not that of the community, *it is essential that some indication of this intention, and of the character of the fwids used, be given in the act of purchase.*For the reasons of the law for the distinction made in this regard between purchases in the name of the wife and those in the name of the husband, see Hero v. Bloch, 44 La.Ann. [1032], 1036, 11 So. 821.” (Italics ours.) It is clearly indicated by the above that the- deed must make full proof and that parol evidence would be inadmissible to rebut the presumption of law that the property is community.

In the case of Sharp v. Zeller, 110 La. 61, 34 So. 129, it was held that, syllabus 1, “In order that property purchased by the husband during the community should become his separate property, *he must, in his act of purchase, have made the double declaration:*First, that it is bought with the *517proceeds of a sale of property belonging to himself individually. Second, that the purchase is made for his individual account, for the purpose of replacing the individual property which he had sold (pour servir de remploi).” (italics ours), citing with approval the cases Hero v. Bloch and Succession of Burke, supra.

In the case of McWilliams v. Stair, 128 La. 752, 55 So. 343, it is clearly pointed out that the husband, while living with his wife in community, must manifest a clear and distinct intention in the act by which property is acquired that such acquisition is made with separate funds for his separate estate, otherwise, it becomes a part of the community.

In the Succession of Andrus, 131 La. 940, 60 So. 623, 624, it is stated: “Jurisprudence has construed this article (Civil Code 2402) so as to except purchases by the wife, in her own name, with her paraphernal funds, which were at the time administered by her separately and apart from her husband. Stauffer, Macready & Co. v. Morgan, 39 La.Ann. [632], 633, 2 So. 98. And also to except purchases by the husband in his own name, with his separate funds, when he, *in the act of purchase,*makes the double declaration that the property is bought with the proceeds of the sale of property belonging to himself individually, and that the purchase is made for his individual account, for the purpose of replacing the individual property which he had sold”, citing the cases of Sharp v. Zeller, McWilliams v. Stair, supra. (Italics ours.) Later cases which follow the cases discussed are Succession of Goll, 156 La. 910, 101 So. 263; Succession of Watkins, 156 La. 1000, 101 So. 395; Succession of Fay, 161 La. 1022, 109 So. 824; Schoeffner v. Schoeffner, 163 La, 142, 111 So. 655; Smith v. Gloyd, 182 La. 770, 160 So. 617; and including the very late cases of Sanderson v. Frost, 198 La. 295, 3 So.2d 626, and Succession of Farley, 205 La. 972, 18 So.2d 586.

In the recent case of Sanderson v. Frost, supra [198 La. 295, 3 So.2d 631], the rule of law relative to the presumption of community was stated thus: “But, when a married man buys property in his name, without a stipulation in the deed that it is bought with his separate funds, the presumption in favor of 'the community is juris et de jure,” citing many cases, including those mentioned supra.

In the case of Succession of Andrus, supra, it was said:

> “As the title of Joseph Christ does not on its face indicate any intention to reinvest his separate funds for his separate benefit, the purchase in question must be considered as having been made for the. benefit of the community.

> “The parol evidence adduced in the court below to prove the intention of the huband to reinvest his separate funds for his individual benefit should have been excluded.” This case is cited with approval in the case of Sanderson v. Frost, supra.

Furthermore, it is stated in the case of Succession of Farley, supra [205 La. 972, 18 So.2d 588], that “when the title * * * is taken in the name of the husband, without a declaration in the deed that it is bought with his separate funds and as his separate property, the presumption that the title is vested in the community is juris et de jure, and *thereafter ccmnot be contradicted by him to the prejudice of his wife or of her heirs”*(italics ours), which tacitly upholds the decision of the Succession of Andrus, supra, relative to the question that parol evidence is inadmissible to vary, contradict or alter the notarial act of October 21, 1902.

The case of Schoeffner v. Schoeffner, supra, involved litigation between husband and wife arising out of the dissolution of the community of acquets and gains by a judgment of separation “a mensa et thoro”. The defendant husband, during the marriage, had acquired certain real property under a deed which recited a cash consideration. In reality, however, the property described was obtained in settlement of his claimed interest in the estate of his deceased sister. The Supreme Court held that the real estate was an acquisition of the community, stating “As stated, instead of reciting the facts to show the real consideration, the deed on its face shows a cash consideration. The property therefore must be regarded as an acquisition of the community.”

Viewing the deed of October 21, 1902, in the light of the aforesaid authorities, we hold that the parol evidence adduced in the court below to prove that the said deed was merely a redemption deed should have been excluded, and we further hold that the property described in the deed must be deemed to be that of the community. We say, as did the Supreme *518Court in the Schoeffner case, that a different situation might be presented if this deed had recited the true status of the transaction and' had been made on behalf of the vendors of the Act of May 13, 1899, rather than merely on behalf of the defendant.

We are further strengthened in our holding in that to hold otherwise would mean the introduction of parol evidence so as to show that the property was redeemed for the benefit of not only the defendant herein, but also for Georgiana Baker, unquestionably a half owner of the property prior to the execution of the Act of May 13, 1899. It has long ago been recognized, and the rule is now firmly established by numerous decisions of the Supreme Cojirt, that though parol evidence is admissible, where fraud or error is charged, to show that a sale is not real, it is under no circumstances admissible to show that the vendee was in reality some other person than the person named in the sale, or that some other person had an interest therein. See Hodge v. Hodge, 151 La. 612, 92 So. 134; Hanby v. Texas Co., 140 La. 189, 195, 72 So. 933, and a long list of decisions therein cited. Defendant has failed to offer any written evidence to show that the act of 1902 was a retrocession tp himself and Georgiana Baker. The act is regular on its face and has the effect, at least ns far as plaintiff is concerned, of placing the title in defendant on October 21, 1902.

However, the defendant may be entitled to claim the value of his undivided half (%) interest in the property at the time of the execution of the sale of Oct. 21, 1902, subject however to his indebtedness at the time of his marriage to plaintiff, and such rights will be reserved to both parties litigant.

For these reasons assigned, the judgment of the lower court is avoided and reversed in so far as it decrees the property in contest forms no part of the community. It is now ordered, adjudged and decreed, that the said judgment, in so far as the property in contest, be recast so as to read as follows:

It is ordered, adjudged and decreed that there be judgment herein in favor of plaintiff, Florence Ella Baker, and against the defendant, Louis Phillip Baker, decreeing that said forty-acre tract of land described in plaintiff’s petition as follows, to-wit: “A certain tract or parcel of land together with the buildings and improvements thereon, located near Wards Creek and about seven (7) miles from the City of Baton Rouge, containing forty (40) acres, in the Southern portion of the Phillip Englehart tract laying and being in Section 56, T 7. S., R. i. E, and Section 59, T. 8. S, R. i. E., said tract having a front of one (1) acre more or less, and to run between parallel lines so as to include forty (40) acres being bounded north by Burden, east by Gayle, south by McIntosh, and west by Baker, being the same property acquired from Ronaldson & Puckett, Co., Ltd., by áct recorded in Book 28, page 400 on the 21st day of October, 1902,” forms a part of the community estate existing between the plaintiff and defendant and is subject to partition, reserving, however, unto defendant the right to claim the value of his undivided one-half (%) interest of date of October 21, 1902, less that which he owed Ronaldson & Puckett Co., Ltd., on February 27, 1901, the date of his marriage to plaintiff, and a's thus amended the judgment stands affirmed, the defendant to pay all costs incurred by these proceedings.

LeBLANC, Judge

(dissenting).

The sole issue in this case is whether the property herein involved is community property belonging to the community which existed between the defendant, Louis Phillip Baker, and his wife, Florence Ella Baker, to whom he was married on February 27, 1901, and with whom he was living on the day the property was transferred to him by Ronaldson & Puckett Co., Ltd., that is on October 21, 1902. Fie contends that it was his property before he was marrried to Florence Ella Baker, who is the plaintiff in this suit, and that the transfer made to him of the property, on October 21, 1902, was simply a re-conveyance of the property by Ronaldson & Puckett Co., Ltd., to whom it had been previously transferred, and in whose name title had passed merely for the sake of giving security for a debt due by him.

I understand it to be conceded that the facts, assuming they were admissible in evidence, are as follows: The defendant, as long ago as the year 1890, had acquired the property. At the time he did he was married by first marriage to a woman named Georgiana Baker. He lived on the property and cultivated it and at the time dealt with the firm of Ronaldson & Puckett Co., Ltd., merchants, who, besides conducting a general merchandise business, made *519advances of supplies and money to farmers. On May 13, 1899, he was indebted in a sum, the amount of which is not certain, but which apparently was in the neighborhood of $200. As was the custom in those days, as is generally admitted, merchants carrying on such a business, instead of securing a farmer’s indebtedness by a mortgage, had him transfer title of his property to them, which title they held until the indebtedness was discharged. The farmer who had thus transferred title remained in possession of his property, as owner, and paid all taxes as they became due.

Such was the arrangement between Louis Phillip Baker and Ronaldson & Puckett Co., Ltd., and those were the circumstances under which a purported sale of the property was made on May 13, 1899, in which there appears a recited consideration of $150. On Oct. 21, 1902, after the defendant had become separated from his first wife and had been married to the present plaintiff some twenty months, Ronaldson & Puckett Co., Ltd., who had never claimed the property, having never exercised any acts of ownership or possession over it, and who never paid the taxes on it except for account of the defendant, re-transferred the property by notarial act in which there was a stated consideration of $300 cash. The evidence is that no money changed hands at the time of either of these purported sales.

The facts can leave no doubt therefore that these transactions constituted no more than the giving of security for an indebtedness according to a custom which prevailed at that time between parties occupying the same relation these parties did. Under those facts also there can be little doubt but that the property, being the very same property which belonged to the defendant before his marriage to the present plaintiff, was his separate property or, if not, was property belonging to the community which existed between him and his first wife and it could not therefore belong to the present community as is contended on behalf of the plaintiff.

Under what I consider proper allegations made in the defendant’s, answer, the trial judge, over objection timely made to the offer of such proof, admitted' testimony which disclosed the foregoing facts. The objection was based on the ground that the purported sale of October 21, 1902, constituted an acquisition of property by the husband, and in the absence of any declaration in the act of sale itself that he was purchasing the same as his separate estate or with funds belonging to his separate estate, the presumption that it belonged to the community then existing between him and the plaintiff herein was conclusive. The majority of the court now hold that the objection was properly urged and that the ruling of the court below was erroneous. The effect of the ruling now made is to preclude all proof that was admitted and to decide the issue strictly on the face of the act of sale of October 21, 1902.

I concur in the holding that there is a rule established in our jurisprudence (not by any provisions of the Civil Code) to the effect that in cases of purchases of property by the husband during the existence of the community, in which no declaration is made in the act of sale itself to indicate a different intention on his part, the presumption that the property belongs to the community is conclusive against him, his heirs or assigns. In the case of Kittredge v. Grau, 158 La. 154, 103 So. 723, 728, this presumption is said to be one “juris et de jure.” The presumption is not the same with regard to the purchases made by the wife during the marriage. On proper allegations, she may contest the status of the property even though there be no declaration of any kind in the act of sale regarding the funds with which it is purchased. I maintain however that the presumption as applied in cases of purchases made by the husband relates strictly to what are really *purchases*or *acquisitions*made by him, or investments of his separate funds or of proceeds from his separate funds, in the property to which he takes title. It does not apply in cases of this kind where proper allegations are made to show that taking title to the property was merely a re-transfer of his property to him after title had been placed in the name of another merely for the sake of giving security for a debt due by him, and that under sufficient allegations,’ proof should be admitted, as was done in this case, to the end that the true status of the property might be judicially determined.

In the case of Hall v. Toussaint, 52 La. Ann. 1763, 28 So. 304, the same contention was made regarding the status of a piece of property as is made here. It appeared from the facts in the case, all of which necessarily had to be produced from testimony dehors the act of sale, that Louis Adrien Toussaint, who died in January, 1897, had *520been married to the defendant in the suit, in 1890, and that there were no children born of their marriage. He had owned certain property acquired by him during the community between himself and a former wife. A building standing on one of those properties burned and the insurance money which he collected was expended in buying property during the existence of the second' community, that is, the one existing between himself and the defendant in the suit. The plaintiff in the case, an heir of the first community, contended that the property having been purchased with the proceeds of insurance money covering a property which belonged to the first community, and which had been destroyed by fire, properly belonged to that community. It is not shown by the reported decision if there was an objection to proof beyond the act itself, but it is somewhat significant that the court, after stating what the presumption is in, such cases, states further: “It is presumed, *in the absence of proof to the contrary,*that the funds with which the price is paid are community funds.” It strikes me that if the rule which precludes all proof, as is contended in this case, is such an inflexible rule, the court itself would have thought of it and applied it rather than make the broad statement just quoted. (Italics mine.) It evidently then went on to consider all the proof tendered as though it had been properly admitted, because in concluding that it was not sufficient, it stated that “the evidence does not rebut 'the presumption favorable to the community.”

In the case of the Succession of Muller, 106 La. 89, 30 So. 329, 330, there was also involved the community status of property appearing in the name of the husband. There were several issues presented in the case but by agreement the appeal was restricted to the sole question as to whether or not the judgment below had correctly decreed that the plaintiff was not entitled to a community interest in the property acquired after her marriage with the decedent, as had been set forth in her petition. By stipulation it was agreed that in making the transcript of appeal which had been taken by the plaintiff, all pleadings, documents, and *evidence*.not having application to the claim for a community interest in the property was to be omitted from the transcript. It was further agreed: “That in the event any document or portion of evidence is ommitted (sic) from the transcript which may have application to the aforesaid issue, and which the parties hereto, or their counsel, wish to supply, they shall have the right to have copies of such documents *or evidence*made and filed in the supreme court as part of the transcript of appeal at any time.” (Italics mine.) It is thus seen that far from barring evidence which under the rule invoked in this case, should have been precluded, the parties were anxious to supply any of it that might have been pertinent to that issue. Again, the court does not seem to have observed the rule for without making any reference to it, it considered and discussed testimony which had been produced for the transcript. That is made plain by the following excerpt from the opinion: “Proceeding, then, to the question whether any of the property in controversy should be held to belong to the separate estate of the husband, we find, *from the evidence in the record,*that the lot on Bienville street was purchased by the decedent July 18, 1885, — eight years, and more, before his marriage, — and was beyond doubt, his separate property; but that the several pieces of property on Barracks and Claiborne streets and on St. Bernard avenue were purchased by him' after the marriage, during the existence of the community, and with nothing said or done at the time to indicate that he was investing his separate funds for his separate benefit, the contrary being the case, as we have seen, so far as concerns the property on Claiborne street. Under these circumstances, according to well-settled jurisprudence, the three properties last mentioned unquestionably belonged to the community.” (Italics mine.)

In every case I have been able to find in which the rule barring evidence which tended to rebut the presumption in favor of the community was enforced there was involved a transaction in which the husband was purchasing a new piece of property or reinvesting funds derived from the sale of property which he had previously owned. The transactions between the husband in the present case and his former creditors were nothing of that nature. He had merely placed the title to the property in the creditors’ name for the giving of security. It would have been more satisfactory no doubt had he, simply granted a mortgage. But the method followed was not unusual at the time. As a matter of fact it seemed to have been the prevailing custom among certain people. When the time came for him to take title back in his name, he had *521no trouble whatsoever. The property was simply retransferred to him. He was not acquiring anything he did not already own, and, under the circumstances, I do not believe he should be denied the right to prove these facts under a rule, which, as I have tried to point out, did not appear to be so unrelenting even in cases of acquisition of property.

I believe that the judgment appealed from is correct, and I therefore respectfully dissent from the majority opinion in which it is decreed otherwise.