Plaintiffs appeal the judgment of the trial court rejecting their action in simulation in which, as heirs of one Isaac Gordon, they seek to annul a sale by said decedent to his daughter, Effie Jane Gordon Yancy, defendant, on the ground no consideration was paid for the alleged transfer. We find the trial court correctly dismissed this action on the merits and affirm the judgment rendered below.
The property in question was acquired on an undisclosed date during the marriage of Isaac Gordon to his second wife, Malissa Tucker, said union occurring sometime prior to 1926. Subject tract became the "home place" of the Gordon family and has remained so for many of the Gordon heirs
Plaintiffs, grandchildren of decedent, represent their predeceased mother, Martha Gordon Pounds, the legitimate daughter of decedent, Isaac Gordon.
The record discloses that from the date of purchase from her father, defendant Effie Gordon Yancy has continuously paid the taxes on subject property. It further appears that from the death of her last surviving parent, defendant has exercised ownership rights regarding the lands, as will hereafter appear. Sometime during the interval 1937-1942, plaintiff and her family moved onto the property, a tract of approximately 140 acres. Plaintiff and her family worked the land along with other members of the family who resided on the place. In addition, plaintiff's family constructed a residence in which they lived.
In or about 1949, conflicting claims of ownership arose between plaintiff Blanche Pounds and the other plaintiffs herein. The controversy culminated in defendant attempting to obtain a lease from plaintiff Annie Pounds Womack covering a certain portion of the tract. Plaintiff declined to execute a lease and the matter remained dormant until 1955, at which time defendant unsuccessfully attempted to obtain a lease from plaintiffs. At this juncture, defendant threatened to legally evict plaintiffs but did not pursue the matter in the courts. Later, however, on February 20, 1956, defendant filed eviction proceedings against plaintiffs. Due to various postponements, the eviction proceeding was not heard until February 17, 1958, at which time exceptions of no right and no cause of action filed by defendants in the ejection suit were sustained and the demands of plaintiff therein dismissed. An appeal was taken by plaintiff in the eviction proceeding; said appeal, however, was not perfected.
On February 14, 1958, Suit Number 2064 on the docket of the trial court was filed by present plaintiffs. The pleadings therein are essentially and basically the same as those in the case presently before us. On April 23, 1959, the pleadings in Suit Number 2064 were amended to include certain additional persons as parties plaintiff. Certain exceptions filed by defendant in Suit Number 2064 were overruled by judgment rendered February 8, 1960. No further action was taken therein until July 15, 1965, on which date plaintiffs moved for a continuance, which request was denied. On that same date, defendant moved for and was granted judgment declaring the action abandoned for failure to prosecute same for five years and dismissing the suit pursuant to La.C.C.P. Article 561.
Meanwhile, however, plaintiffs instituted the present action on July 9, 1965. In addition to making pleas almost identical to those urged in Suit Number 2064, the present action seeks injunctive relief against alleged timber cuttings reputedly made by defendant on the property in which plaintiffs claim an interest. Defendant responded to the instant action by filing (1) a plea of res judicata based on the dismissal of Suit Number 2064, and (2) pleas of ten and thirty years prescription. All said defenses were referred to the merits by the trial court. As previously noted, the trial court rendered judgment for defendant on the merits and plaintiffs have appealed.
Defendants contend the trial court erred in (1) failing to sustain appellees' pleas of abandonment and res judicata predicated on dismissal of the former action; (2) declining to sustain defendants' exceptions of 10 and 30 years prescription. Plaintiffs counter by charging the trial court improperly dismissed the prior action because it was not in fact abandoned. It is urged in this respect that plaintiffs on numerous occasions contacted their attorney of record in the former action and inquired as to the status of the suit. In addition, plaintiffs contend they repeatedly made known to their counsel their desire to prosecute the matter to judgment. Alternatively plaintiffs argue the judgment of dismissal may not form the basis of a plea of abandonment or res judicata because it never became final. In this regard plaintiffs show they filed a rule in Suit Number 2064 to set aside the judgment of dismissal, which rule has never been acted upon by the trial court.
We find no merit in plaintiffs' contention Suit Number 2064 was improperly dismissed by the trial court because it was not within appellants' power to prosecute same. Admittedly, failure to prosecute for five years does not constitute a conclusive presumption of intent to abandon the action. Bell v. Staring, La.App., 170 So. 502. The fault, to warrant dismissal, must be attributable to plaintiff and where the cause of failure to prosecute is beyond plaintiff's control, the prescriptive period does not run. Barton v. Burbank, 138 La. 997, 71 So. 134; Bell v. Staring, supra.
However, where plaintiff has it within his power to act in furtherance of the prosecution of his claim to final judgment, but fails to do so through neglect or inaction, he will be considered as having abandoned his suit. Augusta Sugar Co., Ltd. v. Haley et al., 163 La. 814, 112 So. 731.
In contending circumstances beyond their control prevented their prosecution of the former action, plaintiffs allege merely that they constantly and continuously besought their then counsel of record by letter, telephone communication and personal contact to pursue their cause in the courts and frequently inquired as to the status of the matter, without avail. In effect, appellants urge they did all within their power to prompt their counsel to act and therefore should not be charged with his dereliction in failing to properly discharge his professional obligation.
We do not consider such circumstances beyond the control of the parties litigant. It is always within the power of a litigant to discharge an attorney who neglects or refuses to act and replace him with another counselor. "Circumstances beyond the control of the litigant", as pertains to the issue at hand, contemplates events making it impossible for the litigant to act in his own behalf such as service in the armed forces making it impossible for the litigant to be present. Zatarain v. Portera, La.App., 63 So.2d 477. A similar circumstance, in our view, would be confinement to a mental institution.
We likewise find no merit in defendants' contention plaintiff's suit should be dismissed on the ground of abandonment or defendants' plea of res judicata. Conceding, arguendo, the finality of the judgment of dismissal of the prior suit, said decree nevertheless cannot form the basis of a plea of abandonment or res judicata.
Defendants' position in this regard is predicated on LeBlanc v. Thibodaux, La. App., 162 So.2d 753, in which this court held an action should be dismissed "with prejudice" where no action was taken in a suit for five years and the matter was
However, a review of the jurisprudence, prompted by defendants' plea of res judicata, impels our reversal of LeBlanc, supra, insofar as said authority holds a suit dismissed for lack of prosecution should be dismissed "with prejudice". It appears this issue has been settled by the Supreme Court in City of New Orleans v. Westwego Canal & Term. Co., 206 La. 450, 19 So.2d 201, in the following language:
Nor does it appear that recodification of La.C.C. Article 3519 into present La.C.C.P. Article 561, has effected any change in the jurisprudence announced in City of New Orleans, supra. Subsequent to the effective date of La.C.C.P. Article 561, the rule laid down in City of New Orleans, supra, has been followed and reiterated in Andrieu v. Davis, La.App., 205 So.2d 181, and State, Department of Highways v. Rottman, La.App., 213 So.2d 77. Clearly, therefore, dismissal of the prior action did not prohibit institution of the present suit.
Our law is settled to the effect that forced heirs, such as plaintiffs herein, have available three means by which they may attack a transfer of property by their ancestors to a particular forced heir. For a scholarly discussion of the subject matter, see 26 Tulane Law Review 203. The procedures thus available to forced heirs are the action in simulation and the demands for collation and reduction.
A simulated transaction is one declared to be feigned or pretended. It has, in effect, no existence. It is a sham inasmuch as the true intent of the parties is that no transfer take place but rather that title remain in the purported vendor because no consideration whatsoever was in fact paid. Succession of Webre, 247 La. 461, 172 So.2d 285.
An action in simulation is imprescriptible. La.R.C.C. Article 2239; Succession of Webre, supra; Smelley v. Ricks, 174 La. 734, 141 So. 445.
When a vendor retains possession by precarious title, or reserves the usufruct and possession of property purportedly sold, the transaction is presumed a simulation. In such cases the parties to the sale bear the burden of proving the authenticity of the transfer. La.C.C. Article 2480; Menefee v. Pipes, La.App., 159 So.2d 439.
Where any consideration passes from vendor to vendee, no matter how
The record discloses verbal testimony of defendant purchaser that the recited consideration of $337.00 was paid in its entirety. She relates that the stated sum of $100.00 averred to have been paid at the time of transfer was in fact paid in cash. In addition, she produced a cashier's check dated May 28, 1927, in the sum of $208.19 issued by the Bank of Greensburg, purchased by defendant and given to and cashed by one J. L. Butler to be credited to decedent's account with Butler, all of which data is noted on the check, a copy of which appears of record. Defendant vendee testified further that the remaining balance on the purchase price was paid to defendant's mother. As previously noted, defendant has paid all taxes assessed against the property since the date of purchase. From the foregoing, we unhesitatingly conclude defendants have established consideration was paid for the transfer and thus refuted the presumption of simulation.
Although plaintiffs do not specifically pray for collation herein, we find that under the allegations of the petition this matter falls squarely within the ambit of Succession of Webre, supra, pursuant to which a similar petition was held sufficient to admit proof of simulation, or that the sale was at a low price or that it was a donation in disguise. Having so held, the court considered and pointed out the scope of LSA-R.C.C. Articles 1248, 2239 and 2444 and noted that Article 1248, supra, contemplates an actual sale of property by parent to child at a very low price. Article 2239 was observed to encompass simulated or feigned agreements having no legal effect while Article 2444 was declared applicable to a donation in disguise by parent to child meaning a sale in which no price is paid or one in which the actual price paid is less than one-fourth the value of the property. The court further observed that Article 1248, supra, expressly provides relief by collation and that in the absence of an independent ground for nullity, the appropriate relief under Article 2444 is likewise collation, citing as authority for the latter proposition, Clark v. Hedden, 109 La. 147, 33 So. 116, and other cases.
After concluding in Succession of Webre, supra, that prescription did not run against an action in simulation, in addressing itself to the issue of collation, the Supreme Court observed:
Article 3544 provides:
Notwithstanding two rather strong dissents sharply critical of the majority view expressed in Succession of Webre, supra, there can be little doubt of the intent of the majority of the Court to hold the action in collation subject to the ten year prescriptive period provided for in La.R.C. C. Article 3544.
We find no factual basis distinguishing the instant case from Succession of Webre, supra, and consequently hold that insofar as the present action seeks collation from defendants, it is prescribed in conformity with La.R.C.C. Article 3544.
Accordingly, the judgment of the trial court is affirmed at appellant's cost.