This suit is by three daughters of Joseph Obie Wood, deceased, and against five sons, a daughter, and the widow of the decedent, to have certain conveyances of real property set aside as simulations. There was judgment in the trial court, in a well-reasoned written opinion, sustaining an exception of no cause of action as to one tract containing 120 acres, setting aside the instruments conveying two tracts of forty acres each, as prayed for by the plaintiffs, and rejecting the plaintiffs' demands as to one 40-acre tract. These three 40-acre tracts constituted one parcel of land called by the parties the J. O. Wood Home Place. The other parcel of land, also containing 120 acres, was referred to by the parties as the Beulah Wood land. The defendants appeal from the following portion of the judgment:
The plaintiffs answered the appeal seeking a reversal of the following portion of the judgment:
The Civil Code provisions involved are:
Spiers v. Davidson, La.App., 135 So.2d 540, 545 (1961).
However, the Spiers case, supra, was not concerned with the provisions of C.C. Art. 2480; there was no contention in the Spiers case that the vendor had remained in possession of the property transferred.
In the instant case, two of the instruments sought to be annulled were executed on December 13, 1952. They were not recorded until September 11, 1963, on which date there was also recorded a "notarial ratification" of these instruments by Mrs. Ludie Pearl Wood. The consideration expressed in the instruments of December 13, 1952 was $400 for each 40-acre tract.
These instruments remained in possession of one of the vendees for nearly eleven years; their sisters testified that they were not aware of their existence until after the sale of some timber from the Home Place a short time before the filing of this suit. The brothers and the mother testified that the deeds had been withheld from the public records intentionally, so that the parents might use the land to obtain money by sale or mortgage if they needed it. The mother of the plaintiffs testified that it was the intention of the decedent to give his daughters a start when they married by providing them with some livestock, but that it was up to the husbands of the girls to provide for them thereafter. Each one of the decedent's sons had a 40-acre tract of land either standing in his name or deeded to him upon the death of the father.
Civil Code Article 2480 requires that, when possession remains with the seller, the parties must "produce proof that they are acting in good faith, and establish the reality of the sale." The only evidence tending to establish the reality of the "sales" of December 13th is the testimony of the two "vendees" that they paid $400 cash for the property. Since they did not exercise any dominion over the property, and admitted that it was their intention to leave the property in such condition that their parents could deal with it as they chose, we must agree with the trial court in its conclusion that the defendants have failed to produce sufficient evidence "to establish the reality of the sale."
As to the 40-acre tract which stands in the name of Gentry Wood: There was a cash deed dated October 4, 1938 purporting to convey the property from J. O. Wood to Gentry Wood. This deed was recorded the same day. On November 10, 1943, Gentry Wood executed a cash deed covering this 40-acre tract, conveying the property to Wilson Wood, a minor.
Gentry Wood did not testify on the trial of the case, and there is no evidence, except for the deed, that the recited consideration was paid. The evidence reflects that Gentry Wood never exercised any possession nor any right of ownership of the property conveyed to him.
There is no explanation of the conveyance from J. O. Wood to Gentry, from Gentry to Wilson, and from Wilson back to Gentry. J. O. Wood retained the possession of this 40-acre tract until his death, as did his widow afterward. The presumption of simulation having arisen, and no evidence having been produced to establish the good faith of the parties and the reality of the sale (C.C. Art. 2480), this transaction must also be declared a simulation.
Accordingly, the judgment appealed from is affirmed, except for that portion affecting the SW/4 of the NE/4 of Section 28, Township 15 North, Range 7 West, Bienville Parish, Louisiana, which part of the judgment is now reversed; and judgment is rendered in favor of the plaintiffs and against the defendants declaring that certain instrument dated October 4, 1938 from J. O. Wood to Gentry Wood, recorded in Book 125, page 578 of the Conveyance Records of Bienville Parish to be null and void, without force and effect, and ordering the same to be canceled and erased from the Conveyance Records of Bienville Parish, Louisiana, at the cost of defendants-appellants.
In their application for rehearing, defendants-appellants complain of the finding that the conveyance to Gentry (Jentry) Wood of the SW/4 of NE/4 of Section 28 was a simulation. The Court's opinion states that "There is no evidence, except for the deed, that the recited consideration was paid." However, there was other testimony with reference to the consideration, stated to be $200 in the deed. The defendant Ludie Pearl Southern Wood, the widow of J. O. Wood and the mother of his children, did testify that she saw Jentry actually pay her husband $200 in money. There was also testimony that Jentry at one time occupied a house located on the forty acre tract that had been deeded to him. The record does not reflect the conditions of the occupancy nor its date. From all the evidence, the record is clear that J. O. Wood and his widow never relinquished possession of the forty acre tract deeded to Jentry, and that the sale to him was a simulation.
The application for rehearing is denied.