author: HALL, Judge.

text:
    Annie R. FREE, as Provisional Curatrix of Jessie E. Free, Plaintiff-Appellant, v. FRANKLIN GUEST HOME, INC., et al., Defendants-Appellees.
    No. 14492.
    Court of Appeal of Louisiana, Second Circuit.
    March 23, 1981.
    En Banc. Rehearing Denied May 1, 1981.
    Writ Denied June 12, 1981.
    Bruscato & Loomis by Philip T. Deal, Monroe, for plaintiff-appellant.

      Hayes, Harkey, Smith & Cascio by Thomas M. Hayes, III, Monroe, for defendants-appellees — Franklin Guest Home, Inc. and Houston General Insurance Co.
    Before HALL, MARVIN and FRED W. JONES, Jr., JJ.
   HALL, Judge.

Mrs. Free, as provisional curatrix of her husband, filed suit on August 18, 1978 against Franklin Guest Home, Inc. and its liability insurer, Houston General Insurance Company, seeking damages arising out of several incidents which. were alleged to have occurred between June, 1974 and February, 1978 while Mr. Free was a resident of the defendant nursing home. The specific incidents alleged in the petition were: (1) In 1975 Mr. Free had two severe cases of pneumonia brought about by neglect of the nursing home, requiring several weeks of hospitalization on each occasion; (2) in 1976 Mr. Free was severely burned while being given a bath by a male orderly; (3) in 1976 Mr. Free was attacked by a fellow patient and struck over his left eye and on the back of his head, all as the result of lack of supervision and care on the part of the defendant nursing home; (4) at an unspecified time Mr. Free was sexually attacked by another male patient, due to improper supervision and attendance by the personnel and supervisors of the defendant nursing home; and (5) in October 1977 Mr. Free sustained a compound fracture of the left hip and a simple fracture of the right hip, which injuries were not discovered until he was hospitalized for other reasons. The plaintiff alleged that “the abuse, indecent treatment, lack of care and supervision, and, at times, total neglect, and episodes of totally inhuman injustices, which occurred to Mr. Free while a resident of Franklin Guest Home, resulted solely from the neglect and negligence of the defendant nursing home which allowed injuries and inhuman treatment to be visited upon this sick, aged, and hopelessly weak individual.” • Plaintiff sought damages for past and future pain and suffering, past and future mental anguish and distress, permanent injuries, refund of payment made to the defendant for care and attendance and past and future medical expenses.

Defendants filed an exception of prescription of one year under LSA-C.C. Art. 3536 as to the first four incidents mentioned above which occurred more than one year prior to the time suit was filed.

Plaintiff then amended and supplemented her petition alleging the existence of a written contract with the defendant and specifically pleading that defendant breached its express contractual obligations in the respects previously alleged and that the damages previously alleged were caused by defendant’s breach of its contractual obligations.

After trial of the exception the district court held that plaintiff’s claim is one in tort and not in contract. The court held that the plaintiff’s claim was based on the general duty of a nursing home to its patient to furnish reasonable care and that an action ex delicto arises from the breach of a general duty while an action in contract springs from special duties. Accordingly, the court held the oneryear prescriptive period applicable. Judgment was rendered sustaining the exception of prescription as to the claims for damages resulting from the two cases of pneumonia in 1975, the burns sustained in 1976, and the physical assault in 1976. The exception was overruled as to the claims for damages resulting from the sexual assault (of which plaintiff had no knowledge until within one year prior to filing suit) and the broken hips. Plaintiff appealed.

On' appeal plaintiff concedes that her claims in tort under LSA-C.C. Art. 2315 arising out of the incidents which occurred in 1975 and 1976 have prescribed. Plaintiff urges, however, that these incidents also amounted to a breach or breaches of defendant’s express contractual obligations, giving rise to an action in contract as well as an action in tort, and that the action for breach of contract, being governed by the 10-year prescription of LSA-C.C. Art. 3544, has not prescribed.

At the trial of the exception, plaintiff offered into evidence two documents which the parties stipulated were signed and issued at the time Mr. Free was admitted to the nursing home. One is entitled “Admission Agreement” and the other is entitled “Patient’s Rights”. The admission agreement provides that the defendant nursing home and Mr. Free “hereby agree to the following financial terms and arrangements providing for the medical, nursing, and personal care of Jesse E. Free on admission.” The patient agreed to pay $378 monthly. Among other provisions the nursing home agreed: “1. To furnish room, board, linens and bedding, nursing care, and such personal services as may be required for the health, safety, good grooming and well-being of the patient.” The agreement also contains the following provision: “1. The management of this home has agreed to exercise such reasonable care toward this person as his or her known condition may require, however this home is in no sense an insurer of his or her safety or welfare and assumes no liability as such.”

The document entitled “Patient’s Rights” provides in pertinent part:

“These patient’s rights ensure that, at least, each patient admitted to this facility; ... 7. Is free from mental and physical abuse, ... 9. Is treated with consideration, respect, and full recognition of his dignity and individuality, including privacy in treatment and in care for his personal needs; . . . . ”

It is well settled that the same acts or omissions may constitute breaches of both general duties and contractual duties and may give rise to both actions in tort and actions in contract. Federal Insurance Co. v. Insurance Company of North America, 262 La. 509, 263 So.2d 871 (1972). A plaintiff may assert both actions and is not required to plead the theory of his case. Phillipe v. Browning Arms Co., 378 So.2d 1383 (La.1981).

In this case there was clearly a contractual relationship between the nursing home and Mr. Free or his wife as his provisional curatrix and the contract was reduced to writing. The contract expressly provides that the nursing home will provide nursing care and such personal services as may be required for the health, safety, good grooming and well being of the patient. The nursing home agreed to exercise such reasonable care toward the person as his or her known condition might require. It further agreed that the patient was to be free from mental and physical abuse and was to be treated with consideration, respect, and full recognition of his dignity and individuality. It may well be, as argued by defendant, that the provisions of the contract add nothing to the general duty which is owed by a nursing home to a patient in the absence of an express contract. Nevertheless, the nursing home entered into express contractual obligations, is bound in contract for performance of these obligations, and is liable in contract for damages arising out of a breach of the contractual obligations. This is true even though the breach might also give rise to liability in tort.

The allegations of plaintiff’s petition with respect to the several incidents of neglect, lack of supervision, abuse, and the like, especially when viewed cumulatively, if established to be true at a trial on the merits, amount to breaches of the defendant’s express contractual obligations as set forth above. For such breaches plaintiff is entitled to bring an action in contract to recover such damages as are established to have resulted from the breach of contract and as are allowable by law for breach of contract. LSA-C.C. Art. 1934. Plaintiff’s action in contract is governed by the 10-year prescription of LSA-C.C. Art. 3544 and was timely asserted within the 10-year period. The judgment of the district court is correct insofar as it sustains the exception of prescription as to plaintiff’s ex delic-to action or actions arising out of the incidents which occurred more than one year prior to the filing of suit but is incorrect insofar as it bars plaintiff’s actions for breach of contract arising out of the same incidents.

Defendants rely on a line of cases which hold that an action for medical malpractice against a doctor or a hospital arising out of the physician’s negligence is a tort action and is not a contract action unless the physician warrants a specific result, and is governed by the prescription of one year. Lott v. Haley, 370 So.2d 521 (La.1979); Phelps v. Donaldson, 243 La. 1118, 150 So.2d 35 (1963); Zeno v. Lincoln General Hospital, 376 So.2d 1284 (La.App.2d Cir. 1979); Sumerall v. St. Paul Fire & Marine Insurance Company, 366 So.2d 213 (La.App.2d Cir. 1978); Dauzat v. St. Paul Fire & Marine Insurance Company, 336 So.2d 540 (La.App.3d Cir. 1976); Steel v. Aetna Life & Casualty, 304 So.2d 861 (La.App.3d Cir. 1974), writ denied 315 So.2d 144 (La.1975). Compare Creighton v. Karlin, 225 So.2d 288 (La.App.4th Cir. 1969), writ denied 254 La. 842, 227 So.2d 590 (1969); and Henson v. St. Paul Fire & Marine Insurance Company, 354 So.2d 612 (La.App.1st Cir. 1977), affirmed on other grounds 363 So.2d 711 (La.1978). See also LSA-R.S. 9:5628, adopted in 1975, establishing the prescriptive period for actions, ex delicto or ex contractu, against physicians and hospitals.

The cases relied on by defendants are not applicable to the instant case. First of all, in none of these cases was there a written contract between the plaintiff and defendant containing express contractual obligations. Second, each of those cases was based on a physician’s negligence, which is not involved in the instant case. Although some of those suits involved a hospital joined with a physician as a defendant, they were each based on the alleged negligence of a physician. The defendants have cited no Louisiana cases which hold that a patient of a hospital or a nursing home, (which has been held to owe the same general duty to a patient as a hospital, Collier v. AMI, Inc., 254 So.2d 170 (La.App.2d Cir. 1971)), cannot assert an action in contract against a hospital or a nursing home for breach of contractual obligations to provide care and services, or that such an action is governed by the one-year prescriptive period provided by LSA-C.C. Art. 3536.

For the reasons assigned, the judgment of the district court is reversed and set aside insofar as it sustained the exception of prescription as to plaintiff’s actions in contract arising out of the incidents which occurred in 1975 and 1976. As to such actions in contract, the exception of prescription is overruled. In all other respects, the judgment of the district court is affirmed. The case is remanded to the district court for further proceedings. All costs of this appeal are assessed to the defendants-appellees.

Affirmed in part, reversed in part, and remanded.


source: Caselaw Access Project

author: PRICE, Judge.

license: Public Domain

text:
    Carolyn PALMER, Plaintiff-Appellant, v. CARTER FEDERAL CREDIT UNION and The Hartford Insurance Company, Defendants-Appellees.
    No. 14495.
    Court of Appeal of Louisiana, Second Circuit.
    March 23, 1981.

      Pringle & Herzog by R. Perry Pringle, Shreveport, for plaintiff-appellant.
    Cook, Yancey, King & Galloway by Herschel E. Richard, Jr., Shreveport, for defendants-appellees.
    Before PRICE, MARVIN and JASPER E. JONES, JJ.
   PRICE, Judge.

In this workmen’s compensation suit the plaintiff, Carolyn Palmer, appeals the judgment of the trial court which sustained the defendant’s exception of prescription. For the reasons assigned, the judgment is affirmed.

Plaintiff was employed as a clerical worker with defendant, Carter Federal Credit Union in, March 1971. In August of 1976 plaintiff was demoted because of mistakes she made in her work. Plaintiff contends that this demotion was arbitrary and unfair and the resulting worry it caused her culminated in severe emotional and psychological trauma manifested by nervousness, headaches, and paralysis of various parts of her body. Plaintiff contends that her emotional well being continued to suffer due to harassment from co-workers and her supervisors. This job-related pressure increased to the point where plaintiff suffered what she at first thought was a “stroke” while bathing at home on January 11, 1977. Plaintiff left work early that day and went to her doctor complaining of a “numbness” along the left side of her body. After a brief hospital stay, plaintiff was advised to get complete bed rest for a couple of weeks. While recuperating plaintiff was notified by defendant on March 9 that she had been terminated because of excessive absences. Plaintiff challenged this termination through procedures implemented by her labor union and she was ultimately ordered reinstated by an arbitrator on December 23, 1977. The next work day, December 27, plaintiff experienced a paralysis of her left arm and leg while at work. Plaintiff left work and returned to her doctor. She has been unable since that time to return to work because of the numbness, weakness, paralysis, and other symptoms she continues to experience.

On September 12,1978, plaintiff filed this workmen’s compensation suit against her employer, Carter Federal Credit Union and its insurer, The Hartford Insurance Company, alleging that she suffered a debilitating and paralyzing attack while in the course of her employment on December 27, 1977. The defendants filed a peremptory exception denying that plaintiff had suffered a compensable injury and alternatively alleging that her claim had prescribed.

The trial court found that plaintiff’s disability had become manifest on January 11, 1977, and the symptoms experienced by plaintiff on December 27 did not constitute a new injury. Since plaintiff did not file this suit within one year of January 11, 1977, as required by La.R.S. 23:1209, the exception was sustained and plaintiff’s suit was dismissed. It is from this judgment that plaintiff appeals.

On appeal plaintiff contends the trial court erred in finding that the symptoms of paralysis experienced by her on January 11, 1977, were sufficiently manifested for purposes of determining the date of the development of her injury for prescription purposes. Plaintiff also contends that the trial court erred in finding that the paralysis experienced by her on December 27, 1977, was not a new injury.

Plaintiff was under the continuous care of Dr. Charles Armistead, psychiatrist, and Mr. Don Heacock, psychologist, from February of 1977 until trial of the exception. When Dr. Armistead first examined plaintiff on March 28, 1977, she was complaining of a numbness or weakness in her left side and his diagnosis was hysterical neurosis. The symptoms exhibited by plaintiff were apparently caused by embarrassment and humiliation she felt from being demoted in August 1976, as well as real or imagined conflicts with a fellow employee. Plaintiff believed this particular co-worker was responsible for her demotion and had singled plaintiff out for undue criticism. Plaintiff also felt that she had been harassed by co-workers and the manager of the defendant credit union. This anxiety and stress was apparently aggravated in March of 1977 when plaintiff -was terminated for excessive absenteeism. The depositions of Dr. Armistead and Mr. Heacock reveal that plaintiff continued to evidence the same hysterical symptoms from January 1977 up to and including time of trial. Although her symptoms varied in severity from a “weakness” to “numbness” to “paralysis” there was never a time when her symptoms were in remission.

The time limitations imposed on institution of suit for workmen’s compensation benefits are found in La.R.S. 23:1209. These limitations generally require that the claimant bring suit within one year of the accident with the proviso that if the injury does not develop immediately after the accident, the claimant may file his suit within one year from the time the injury develops. The injury is sufficiently developed to toll prescription whenever the “disability to perform work becomes manifest either to the injured employee or his employer.” Wallace v. Remington Rand, Inc., 229 La. 651, 86 So.2d 522 (1956). See also Bolden v. Georgia Casualty and Surety Company, 363 So.2d 419 (La.1978); Malone-Johnson, “Workers’ Compensation Law and Practice,” 2d Ed., La. Civil Law Treatise, Vol. 14, § 384, and cases cited therein.

The following statement of the applicable law by the First Circuit is pertinent:

Our jurisprudence is clear that in cases such as this, where there is no accident or specific occurrence to which a cause can be attributed, but rather where there is a progression and recurrent manifestation of illness of disability from latent causes, which may be attributable in whole or part to work related incidents, the time of development of the injury for the purpose of determining a prescriptive date, is the date of termination of employment, more specifically, the date when the employee finally has to give in to his disability and quit work.
Burns v. W. H. Patterson Construction Company, 310 So.2d 675 (La.App. 1st Cir. 1975).

We expressly do not decide whether plaintiff has sustained a work-related personal injury by accident for in any event we conclude that the symptoms exhibited by plaintiff and of which she complains had rendered her unable to perform the duties of her employment in a satisfactory manner for more than one year prior to her filing this suit.

Although plaintiff contends that the paralysis she experienced on December 27, 1977, was a new and different injury from her prior symptoms, we conclude, as did the trial judge, that this was simply a further progression of the hysterical neurosis from which plaintiff had suffered at least since January 11, 1977. This conclusion finds support in the general tenor of the treating doctors’ testimony as well as certain specific passages such as this from Mr. Heacoek:

Q Did she relate to you where the attack took place?
A It took place at work. The numbness, I mean the paralysis set in at work.
Q How did she describe this to you? A She just lost the use of her arm at first. It was my recollection that it did not immediately affect the leg. The leg was numb too. But the leg was still mobile. The arm became completely numb and unmovable. Well, it was movable, but she could not move it herself in any free sense of the word.
Q Was this paralysis unexpected by you?
A Not unexpected in the sense that I realized that this type of disorder could evolve to paralysis. In my release I didn’t indicate to her; and to the employer, that paralysis could come from this disorder.
Q Do you feel any feeling as to where this paralysis, or what caused this paralysis?
A I believe the paralysis was one more evolution in this disorder history.

Dr. Armistead acknowledged that the “weakness” or “numbness” plaintiff experienced prior to December 27, 1977, was about the same as the “paralysis” complained of on December 27. Dr. Armistead described plaintiff’s disability in a letter to the defendant insurance company on February 14, 1978, as a “paresis and numbness of the left upper extremity.” That these various terms have been used interchangeably to describe the symptoms plaintiff has exhibited since January 1977 is shown from the following excerpt from Dr. Armistead’s deposition:

Q This paralysis that you have spoke of in terms of weakness, are you using those as being the same thing?
A Yes. When you say “weakness” or “paralysis” of the extremities, it is just weak.
Q Even before December of ’77, she was putting her hand in her pocket or holding it to her side. Doctor, in that situation, you called it weakness or paresis or paralysis. You are also talking about the same thing; is that right?
A Yes. The paralysis means it is paralyzed. Paresis is a partial paralysis, mild weakness, mild paresis.
Q But, she was not paralyzed in the sense, like you cannot operate with a nerve out. She was not in that sense paralyzed at any time?
A No.

Plaintiff “gave in to her disability and quit work” in January of 1977. She was advised that her symptoms were work-related and that she was disabled from returning to work. She was constantly under her doctors’ care from January until she returned for two days work on December 23, 1977.

This is not a situation where the injury has become latent with a later manifestation. The preponderance of the evidence shows that plaintiff’s condition remained virtually unchanged from January of 1977 until she attempted to resume her duties in December. Dr. Armistead released plaintiff to return to work on December 23, but noted that the release “is made at her specific request and is done so in the face of the continuance of many of the symptoms of her disorder that continue at times of stress.” Mr. Heacock likewise reluctantly released plaintiff to return to work on December 23, while noting the continuance of her symptoms and even predicting that it was “possible that the symptoms of numbness and dizziness that she experiences might even esculate (sic) into temporary paralysis.”

A fair evaluation of the evidence leads to the conclusion that plaintiff was disabled when she returned to work on December 23, 1977. We concur in the trial court’s factual conclusion that plaintiff has been unable since January of 1977 to perform the duties of her employment with defendant. Since plaintiff filed this suit more than one year after the development of her injury, her suit was properly dismissed.

For the foregoing reasons, the judgment appealed is affirmed at appellant’s costs.

      . La.R.S. 23:1209
      In case of personal injury (including death resulting therefrom) all claims for payments shall be forever barred unless within one year after the accident or death the parties have agreed upon the payments to be made under this Chapter or unless within one year after the accident proceedings have been begun as provided in Parts III and IV of this Chapter. Where such payments have been made in any case, the limitation shall not take effect until three years from the time of making the last payment. Also, where the injury does not result at the time of, or develop immediately after the accident, the limitation shall not take effect until the expiration of one year from the time the injury develops, but in all such cases the claim for payment shall be forever barred unless the proceedings have been begun within two years from the date of the accident.

      . The terms “accident,” “injury,” and “personal injuries” are specifically defined in La.R.S. 23:1021:
      (1) “Accident” means an unexpected or unforeseen event happening suddenly or violently, with or without human fault and producing at the time objective symptoms of an injury.

      (6) “Injury” and “personal injuries” include only injuries by violence to the physical structure of the body and such disease or infections as naturally result therefrom. These terms shall in no case be construed to include any other form of disease or derangement, howsoever caused or contracted.


author: JASPER E. JONES, Judge.

text:
    John W. CARDINALE, Jr., Plaintiff-Appellee, v. Janice Lee CARDINALE, Defendant-Appellant.
    No. 14496.
    Court of Appeal of Louisiana, Second Circuit.
    March 23, 1981.
    James B. Wells & Associates, by James B. Wells, Bossier City, for plaintiff-appellee.
    Nelson, Hammons & Johnson, by John L. Hammons, Shreveport, for defendant-appellant.
    Before PRICE, MARVIN and JASPER E. JONES, JJ.
   JASPER E. JONES, Judge.

Defendant and plaintiff in reconvention, Janice Lee Cardinale, appeals a judgment denying her a separation from her husband, plaintiff, John W. Cardinale, Jr. We afT firm.

Plaintiff sued defendant for a divorce on the grounds of adultery. Plaintiff alleged that on April 12, 1980 defendant was seen with an unnamed white male at the Lost and Found Bar. He also alleged that defendant danced with this man and then met him later at her apartment where at 12:07 a. m. the lights were extinguished until 1:30 a. m.

Defendant denied these allegations and reconvened for a separation on the grounds of public defamation and “of excesses and cruelty.”

The trial judge rejected plaintiff’s demands for a divorce because he failed to prove defendant committed adultery. He also found defendant failed to show excesses and cruelties as would entitle her to a separation, and that she did not prove public defamation. The trial judge concluded she could not use the allegation of adultery in the divorce petition as a basis for a separation on the grounds of public defamation.

Defendant appeals, asserting as the sole issue that the trial judge was wrong in holding that the allegation of adultery in plaintiff’s petition did not constitute public defamation such as would entitle defendant to a separation under LSA-C.C. art. ^(d).

In the decision of Homes v. Carrier, 16 La.Ann. 94 (1861), the wife sued the husband for a divorce on the grounds of adultery. She failed to appear to prosecute her suit on trial date and her suit was dismissed. The husband then sued for separation because of the wife’s public defamation of him in her divorce petition. The supreme court held that a charge of adultery intended to serve as a basis for a judgment of divorce is not of itself a defamation such as would entitle a party to a separation, even though the party failed to sustain his or her allegations by proof. The court there said:

“If the accusation be not wanton or malicious, although unfounded in point of fact, it cannot, with propriety, be said that there was a public defamation.” Id. at 44.

In Spiller v. Spiller, 170 La. 813, 129 So. 212 (1930), the husband sued the wife for divorce, alleging one specific act of adultery and several general adulterous acts. At trial he was unable to prove any illicit act on his wife’s part by either circumstantial or positive evidence. The wife had reconvened for a separation on the grounds of defamation relying upon the allegations of the husband’s petition, and the supreme court rejected her demands stating:

“The charge of adultery made in the petition although not sustained, in our opinion does not authorize a separation in favor of defendant.” Citing Homes, supra. Id., 170 La. 813, 129 So. at 215.

Shortly after the separation between the parties, which occurred April 5, 1980, plaintiff hired private detectives to follow his wife and after plaintiff obtained the report from these investigators he instituted his suit for divorce on the grounds of adultery on April 23, 1980.

The record established that the case was earlier set for trial on May 8, 1980 at which time plaintiff’s investigators had been subpoenaed but when the case had to be continued because it was pushed from the docket by other eases, these witnesses were not told to return to court for the later trial, nor were they again timely subpoenaed.

Plaintiff’s attorney moved for a continuance because of the absence of these key witnesses, but the motion was denied. Instanter subpoenas were issued for plaintiff’s investigators as the trial proceeded, but these witnesses apparently never appeared at court as they were never placed upon the witness stand. Plaintiff had no witnesses to establish that his wife was in her apartment with a man with the lights out between 12:07 a. m. and 1:30 a. m. on April 12, 1980.

At one point during the trial plaintiff was about to tell what he was told by the investigators concerning their investigation of the activities of plaintiff’s wife, but this testimony was excluded based upon an objection by counsel for appellant that the testimony was hearsay. Defendant admitted that on April 12, 1980 she went to the Lost & Found Lounge with Larry Mauldin, a friend and former co-worker of hers. She categorically denied any adulterous acts with him. She stated he dropped her off at her apartment about 11:30 p. m. She also admitted she was “going with” Mauldin for about five months after moving out from her husband.

In the supreme court decision of Starns v. Starns, 176 La. 610, 146 So. 165 (1933), the court reiterated the rule of Homes, supra, to the effect that before an accusation of infidelity can be the basis for a separation on the grounds of defamation, the accusations must be made with malice. The court rejected a wife’s claim to a separation sought upon defamation, stating:

“For the purpose of this case all that is necessary for us to find, as we do find, is that defendant did not causelessly and maliciously cause the publication of slanderous statements concerning his wife for the purpose and the intent of inflicting injury upon her.” Id., 176 La. 610, 146 So. at 167.

In the Second Circuit case of Watson v. Watson, 209 So.2d 528 (La.App. 2d Cir. 1968), the Starns, supra, case was cited with approval and the quoted rationale of Starns was reiterated.

The fact that appellant admitted going to a bar with another man and staying there with him for some time before he carried her back to her apartment on the night of the alleged adultery, together with the fact that plaintiff had been forced to trial without having available the investigators whom he employed, are circumstances which we conclude adequately support the trial judge’s conclusions that appellant did not establish her cause of action for a separation on the ground of defamation. The fact that plaintiff’s attorney failed to subpoena the investigators before trial cannot establish that plaintiff’s allegations of adultery were made with malice, nor do these allegations standing alone establish that plaintiff made them with malice.

Judgment is AFFIRMED at defendant’s cost.

      . LSA-C.C. art. 138 — “Separation from bed and board may be claimed reciprocally for the following causes:
      ******
      (4) Of a public defamation on the part of one of the married persons towards the other; ...”


text:
    Ruth Woodard MITCHELL, Plaintiff-Appellant, v. D. L. BERTOLLA, Defendant-Appellee. D. L. (Denny) BERTOLLA, Plaintiff-Appellee, v. Ruth W. MITCHELL et al., Defendants-Appellants.
    No. 14497, 14498.
    Court of Appeal of Louisiana, Second Circuit.
    March 23, 1981.
    Writ Denied May 6,1981.

      Bobby L. Culpepper, Jonesboro, for Mitchell.
    Stewart & Stewart, Arcadia, for Bertolla.
    Before PRICE, MARVIN and JASPER E. JONES, JJ.
   JASPER E. JONES, Judge.

Plaintiff in suit No. 14,497, Ruth W. Mitchell, appeals a judgment rejecting her demands to cancel an option to purchase contained in a “Lease Agreement and Option to Purchase” and granting defendant, plaintiff-in-reconvention, Denny Bertolla, specific performance of the option. Mitchell also appeals a judgment in suit No. 14,498 rejecting her demands as plaintiff-in-reconvention to cancel the same option. We affirm.

On May 13, 1971 Mitchell leased to Ber-tolla 541 acres of land for a period of 3 years, and the lease contained an option giving Bertolla the right to purchase the land during the pendency of the lease. Ber-tolla sought to exercise the option during the pendency of the lease, and Mitchell refused to convey the property. The ensuing complicated and lengthy litigation resulted. For a history of this litigation see Mitchell v. Bertolla, 300 So.2d 209 (La.App. 2d Cir. 1974); Mitchell v. Bertolla, 328 So.2d 380 (La.App. 2d Cir. 1976); Mitchell v. Bertolla, 340 So.2d 287 (La.1976); and Bertolla v. Mitchell, 364 So.2d 653 (La.App. 2d Cir. 1978).

In suit No. 14,497 Mitchell sued Bertolla for cancellation of the option contained in a “Lease Agreement and Option to Purchase” on the grounds that the option was secured by fraud and that there was no consideration given for it. Bertolla reconvened in this suit for specific performance.

Bertolla sued Mitchell in suit No. 14,498 and sought specific performance of the option and Mitchell reconvened seeking to cancel the option on the grounds that it was secured by fraud and was not supported by consideration. Only the judgment rejecting the reconventional demand is here appealed.

The trial judge found that Mitchell failed to carry her burden of proving fraud. He found that it was immaterial whether there was consideration for the option because Bertolla exercised the option prior to Mitchell’s attempt to revoke it.

ISSUE OF NO CONSIDERATION FOR OPTION

The Mitchell-Bertolla lease provided for a rental installment of $75 each month and recited no consideration for the option. The jurisprudence holds that a lease is sufficient consideration for an option to purchase the immovable property contained in the lease agreement. No specific cash consideration for the option is required to be set forth in the lease.

In Murphy v. Hussey, 117 La. 390, 41 So. 692 (1906), the court held that a lease containing an option to purchase is sufficient consideration for the option to purchase. In Succession of Witting, 121 La. 501, 46 So. 606 (1908), the court concluded that an option to purchase contained in a lease is not a stipulation standing alone but is a part of the lease contract, and that the lease containing affirmative covenants of the lessee is consideration for the right to purchase during the pendency of the lease. In Kinberger v. Drouet, 149 La. 986, 90 So. 367 (1922), the court stated:

“A lease with the affirmative covenants of the lessee is a sufficient consideration for a contract giving the lessee a right to purchase the property during the continuance of the lease, so that the option cannot be withdrawn by the lessor during that time.” Id. at 369.

See also Farris v. Interstate Enterprises, Inc., 270 So.2d 230 (La.App. 1st Cir. 1972).

Mitchell cites Goodyear Tire & Rubber Co. v. Ruiz, 367 So.2d 79 (La.App. 4th Cir. 1979), for the proposition that a lease is not sufficient consideration for an option to purchase contained therein. However, Goodyear does not support her conclusion. In Goodyear plaintiff and defendant in 1971 had entered into a lease contract which contained no option. In 1976 plaintiff and defendant executed an option to purchase agreement which recited that it was an amendment to the lease, but the option was supported by no consideration. Goodyear contended that the original lease provided the consideration under the Kinberger, supra, rule. The Fourth Circuit correctly held that a lease is consideration for an option to purchase only where the option given to the lessee is “part of the package of benefits” being exchanged for those going to the lessor.

The Mitchell-Bertolla lease document was entitled “Lease Agreement and Option to Purchase”, and the option was part and parcel of the lease agreement, and therefore had as its consideration the lease. Mitchell’s contention that the option is not supported by consideration is without merit.

DID BERTOLLA USE FRAUD IN ACQUIRING THE OPTION?

Mitchell further complains that the lease contract should be vitiated because of fraud. As evidence of fraud Mitchell relied upon her testimony and that of her maid that Mitchell and Bertolla were dating at the time of the agreement. Bertolla denies this relationship. We observe that even if the litigants had dated each other, Mitchell fails to establish how such circumstances constitute fraud in the confection of the lease and option, other than her vague statement that she trusted Bertolla and did not read the document. She contends that she did not intend for the lease to contain an option. The only other evidence designed to establish fraud was testimony of two friends of Mitchell that they heard Bertolla say he had made a good deal on some property with a widow woman. Ber-tolla denied these statements and even if he had made them, these declarations standing alone contribute very little toward establishing that Bertolla was guilty of fraud in obtaining the option.

The party alleging fraud has the burden of proving it by legal and convincing evidence. Hall v. ArkLa Gas Co., 368 So.2d 984 (La. 1979). Fraud is never presumed. Hall, supra; Buxton v. McKendrick, 223 La. 62, 64 So.2d 844 (1953); Sanders v. Sanders, 222 La. 233, 62 So.2d 284 (1952). Proof of fraud must be by evidence well beyond a preponderance; exceptionally strong proof is required. Hall, supra; Placid Oil Co. v. Taylor, 345 So.2d 254 (La.App. 3d Cir. 1977).

The trial court made the following findings of fact:

“From the evidence adduced at trial the Court finds: (1) that Mrs. Mitchell had been in business many years prior to the execution of this Agreement and that had she read the instrument she would have known that an Option to Purchase was contained therein; (2) that her attorney, Mr. Wimberly, at her request, read the instrument in her presence, again indicating that she must have known the Option to Purchase was contained therein; (3) that not long before the execution of this Agreement Mrs. Mitchell had requested various realtors to see if they could find buyers for the property and had “For Sale” signs on the property, indicating an intent to sell; (4) that she had sold other property for approximately the same price shortly before the execution of this Agreement; ...”

These factual findings are entitled to great weight and are not to be disturbed by us in the absence of manifest error. Canter v. Koehring Co., 283 So.2d 716 (La. 1973); Arceneaux v. Domingue, 365 So.2d 1330 (La. 1978). There is substantial evidence in the record to support these factual determinations and we agree with them. Mitchell had operated a store inherited from her father for several years and was operating it when she met Bertolla. She had sold property to Continental Can Co. shortly before the lease contract was entered into. She had an associate degree in nursing and had completed two or three years of college. From her educational and business background it is apparent that Mitchell was fully capable of understanding the full significance of the lease and option which she negotiated with Bertolla. Mitchell and Ber-tolla met and contracted on equal grounds. Mitchell failed to produce the strong proof needed to prove fraud. The hazy statements by Mitchell and her maid regarding a dating situation existing between Mitchell and Bertolla at the time of the contract are simply not sufficient to show fraud. We also note, as did the trial judge, that Mitchell’s attorney read the agreement in Mitchell’s presence at the time it was signed, indicating her knowledge of the option to purchase. ,

The cases cited by Mitchell for the proposition that she was defrauded out of her land involved situations in which there was a wide discrepancy between the educational and economic backgrounds of the parties involved and are therefore distinguishable. In Placid Oil, supra, the party who was defrauded was 83 years old with no formal education and barely able to read or write. Her niece to whom she sold her mineral rights had a masters degree in speech, 30-hours towards her doctorate, and realized her aunt was incapable of reading a legal document. In Smith v. Everett, 291 So.2d 835 (La.App. 4th Cir. 1974), the plaintiff had a seventh grade education and was employed as a garbage collector. Defendant had been to two colleges, sold stocks and bonds, and was a licensed realtor. No such disparities exist between Mitchell and Bertolla in this case. Mitchell testified she did not read the lease and did not know it contained the option. Bertolla testified he saw her read it. However, even if Mitchell failed to read the lease contract, she signed the instrument and is presumed to know its contents. See Fontenot v. Coreil, 2 So.2d 97 (La.App. 1941); Leny v. Friedman, 372 So.2d 721 (La.App. 4th Cir. 1979), and the authorities cited therein. There is no merit to Mitchell’s contention that the option was acquired by fraud.

Bertolla filed exceptions of no cause of action in this court contending that the judgments affirmed (which are now final) in the two Second Circuit cases earlier referred to, Mitchell v. Bertolla, 300 So.2d 209 (La.App. 2d Cir. 1974) and Bertolla v. Mitchell, 364 So.2d 653 (La.App. 2d Cir. 1978), ordered specific performance and therefore preclude the existence of the cause of action asserted by Mitchell to cancel the option on the grounds of no consideration and fraud.

We find it unnecessary to consider the exception of no cause of action filed by Bertolla in this court because we have found the option was supported by consideration, and there was no fraud exercised by Bertolla in acquiring the option.

AFFIRMED at appellant’s cost.

      . A judgment on the main demand ordering specific performance was affirmed by this court in Bertolla v. Mitchell, 364 So.2d 653 (La.App. 2d Cir. 1978), and there the reconven-tional demand was remanded for trial and it is the judgment following the remand that is here appealed.


author: MARVIN, Judge.

text:
    Carl Melvin FRANKLIN, Plaintiff-Appellant, v. COMPLETE AUTO TRANSIT CO., Defendant-Appellee.
    No. 14500.
    Court of Appeal of Louisiana, Second Circuit.
    March 23, 1981.
    Hal V. Lyons, Shreveport, for plaintiff-appellant.
    Lunn, Irion, Switzer, Johnson & Salley by Frank M. Walker, Jr., Shreveport, for defendant-appellee.
    Before PRICE, MARVIN and JASPER E. JONES, JJ.
   MARVIN, Judge.

In this worker’s compensation action, the claimant’s demands for benefits arising out of psychological disability were dismissed after trial on a plea of prescription. LRS 23:1209. He appeals. We notice the failure of claimant to state a cause of action and affirm the dismissal. CCP 927; LRS 23:1021(1), (6); LRS 23:1031.

Claimant, employed as a truck driver, violently collided his 18-wheeler in either October 1975 or 1976 with an automobile which drove into his path. The woman driver of the automobile was killed and her young child passenger suffered permanent brain damage. In the latter part of 1977 while in the same area on the same highway claimant had to drive his truck off the highway and into a ditch to avoid colliding with another automobile which also drove into his path of travel.

From the first accident claimant sustained some psychological upset and anxiety but managed to continue in his occupation after a short time off work. The 1977 incident again triggered, aggravated, and intensified the anxiety of the first accident. Claimant became extremely depressed, had nightmares and dreams in which he heard a small child crying, and eventually developed an uncontrollable fear of having another accident. Claimant brought suit in June 1979 after terminating his employment about two months before.

After terminating his employment, claimant has been undergoing psychiatric treatment and counseling. Two psychiatrists testified that claimant was disabled from driving a truck and related his disability to the fatal accident and the later incident. Claimant’s testimony about the exact year in which the first accident occurred was inconclusive and the trial court found that the first incident occurred in 1975 and the second in 1977. Claimant’s suit was filed more than two years after the first accident, but less than two years after the second incident. LRS 23:1209.

Even if the fatal accident be found to have occurred in 1976, that accident still occurred more than two years before claimant filed suit. The 1977 incident occurred within the two year period before claimant filed suit, and when viewed in the light most favorable to claimant, could be construed as an accident in the conventional sense which has not prescribed. This construction, however, does not avail claimant because the crucial issue is whether this claimant suffered an injury or persona] injury within the meaning of the law when he fails to mention in his testimony that he was injured by violence to the physical structure of his body in the 1977 incident.

The employee’s cause of action under the workers’ compensation law is expressed in § 1031 and § 1221:

“If any employee . .. receives personal injury by accident arising out of and in the course and scope of his employment, his employer shall pay ...” (§ 1031)
“Compensation shall be paid ... in accordance with the following schedule of payments:
“(1) For injury producing temporary total disability . . .
“(2) For injury producing permanent total disability . . .
“(3) For .injury producing partial disability ...”(§ 1221)

Emphasis supplied.

The terms injury and personal injury have been legislatively defined in § 1021(6):

“Injury and personal injuries include only injuries by violence to the physical structure of the body and such disease or infections as naturally result therefrom. These terms shall in no case be construed to include any other form of disease or derangement, however caused or construed.”

Emphasis supplied.

In allowing benefits for psychological disability such as anxiety conversion reactions (neurosis) following the healing of a physical injury, our courts have effectively followed the legislative definition of § 1021(6). In such cases, the neurosis is a [mental] disease that naturally results from a physical injury. Thus where the claimant does not show that a particular incident caused him an injury by violence to the physical structure of his body, a psychological disability resulting from the incident, however disabling, is not within the statutory meaning of injury-personal injury. We are expressly admonished by the legislature not to construe the definition of injury-personal injury to include any other disease or derangement, however caused or contracted. § 1021 supra. The mental disease or derangement must naturally result from and be causally related to injury by violence to the physical structure of the body, and not from other causes.

Larson observes that while some jurisdictions permit recovery in these “mental-mental cases”, as distinguished from “physical-mental” cases, Louisiana is among the substantial minority of states which do not provide for recovery. See Larson, Workmen’s Compensation Law, § 42.23 at p. 7-624. Louisiana, of course, recognizes Larson’s “physical-mental” distinction and, as we have observed, allows recovery for mental disorder following a physical injury.

Under the circumstances shown, claimant’s relief must come from the Legislature and not the courts. At his cost, judgment dismissing his demands, is AFFIRMED.

      . “In case of personal injury (including death resulting therefrom) all claims for payments shall be forever barred unless within one year' after the accident or death the parties have agreed upon the payments to be made under this Chapter or unless within one year after the accident proceedings have been begun as provided in Parts III and IV of this Chapter. Where such payments have been made in any case, the limitation shall not take effect until the expiration of one year from the time of making the last payment, except that in cases of partial disability this limitation shall not take effect until three years from the time of making the last payment. Also, where the injury does not result at the time of, or develop immediately after the accident, the limitation shall not take effect until the expiration of one year from the time the injury develops, but in all such cases the claim for payment shall be forever barred unless the proceedings have been begun within two years from the date of the accident.”

      . See Malone-Johnson, “Workmen’s Compensation”, 2d Ed., La. Civil Law Treatise, Vol. 13, § 262, and cases cited therein. See also Knight v. Southeastern Chemical Corp., 344 So.2d 67 (La.App. 4th Cir. 1977).

      . Black’s Law Dictionary, 5th Edition, does not provide a definition of derangement, but simply states, “See insanity”. Webster’s Third New International Dictionary (1971) likewise does not define derangement as anything other than mental.


text:
    Betty Toups PIERCE, Plaintiff-Appellee, v. Loyd J. PIERCE, Jr., Defendant-Appellant.
    No. 14507.
    Court of Appeal of Louisiana, Second Circuit.
    March 23, 1981.

      Weinstein & Moak by Nelson A. Moak, Shreveport, for plaintiff-appellee.
    Richie & Richie by C. Vernon Richie, Shreveport, for defendant-appellant.
    Before PRICE, HALL and JASPER E. JONES, JJ.
   JASPER E. JONES, Judge.

Defendant, Loyd J. Pierce, Jr., appeals a trial court judgment making executory $7760 in accrued child support owed plaintiff, Betty Jane Toups Pierce. We affirm.

Plaintiff and defendant were divorced on July 17, 1972. The divorce judgment awarded plaintiff custody of three minor children born of the marriage, and ordered the defendant to pay $60 per week child support. Plaintiff filed this action July 7, 1980 to have 156 weeks of child support made executory (for a total of $9360). Defendant made no child support payments following the divorce judgment until January 1980, when following the institution of a criminal nonsupport proceeding he commenced making child support payments which totaled $1600 at the time this suit was tried in September 1980.

Plaintiff and defendant entered into a community property settlement July 18, 1973 in which plaintiff received title to all the immovable property and some movable property belonging to the community:

“in full payment, satisfaction, acquittance and discharge of all sums and amounts which may be due and for all sums and amounts which would be due in the future ... for alimony or child support ..."

Plaintiff “forever” released defendant from any alimony or child support obligation, “past, present or future.”

In the community property settlement defendant conveyed to plaintiff the family home located on a lot in rural Webster Parish and the furniture located in the house. The immovable property was subject to a mortgage in favor of a Minden bank upon which defendant made no payments following the divorce. The house was in need of repair and after plaintiff acquired full title to it she borrowed on a second mortgage from another financial institution the sum of $5000 to repair it. She failed to repay this loan. She lost the house in a foreclosure proceeding. While the record does not clearly establish the value of the community property received by plaintiff in the settlement, from the facts which we do find in the record it is apparent that the property received by plaintiff from defendant could have been worth very little over $2500.

The trial court found defendant had paid $1600 on his child support obligation, and gave this amount as a credit against the $9360 sued for resulting in a judgment of $7760.

On appeal plaintiff contends that her agreement to waive future child support contained in the community property settlement is contrary to public policy, and for that reason unenforceable.

The obligation which this father, defendant, owes to his children emanates from LSA-C.C. art. 227, which reads:

“Fathers and mothers, by the very act of marrying, contract together the obligation of supporting, maintaining, and educating their children.”

This obligation stems not from marriage, but from the paternity or maternity of the parent involved. Parents cannot permanently set aside a decree of child support. Walder v. Walder, 159 La. 231, 105 So. 300 (1925), and Dubroc v. Dubroc, 388 So.2d 377 (La.1980). The legal duty of support owed to a child cannot be renounced; A parent may suspend the right to collect the support by turning a child over to the parent who owes the duty of support, Dubroc, supra, but otherwise cannot, in suspending this right, thwart the enforcement of the child’s right to support.

In Dubroc, supra, the court enforced an agreement by the mother to suspend the payment of court ordered child support by the father for the support of a son whose physical custody the mother surrendered to the father, who thereafter provided for the needs of the boy. The court here specifically recognized that such agreements which have the effect of depriving the child of needed support were unenforceable. The court stated:

“The parent may not, by suspension of this right, thwart the purpose for which the right is established, i. e., the enforcement of the child’s right to support and upbringing.
For these reasons, an agreement by a parent to suspend his right to receive child support payments will not be enforced unless it meets the requisites for a conventional obligation and fosters the continued support and upbringing of the child. To allow the parent to suspend his right to receive support payments under circumstances contrary to the child’s interests, would be inimical to the ultimate goal of support and upbringing of the child. On the other hand, if the parties clearly agree to a suspension of the payments, and such agreement does not interrupt the child’s maintenance or upbringing or otherwise work to his detriment, the agreement should be enforceable.” Id. at 380 (emphasis added).

We therefore hold that defendant here could not permanently evade his legal duty to support his children by agreeing to turn over all the community property to plaintiff. Defendant owes his children an obligation to support which cannot be erased by the community property agreement.

Defendant cites Monk v. Monk, 376 So.2d 552 (La.App. 3d Cir. 1979), for the proposition that child support can be Waived. On December 2, 1977, during the period between separation and divorce, Monk transferred to the wife title to community property in exchange for her waiver of alimony and child support. The divorce judgment obtained on December 3, 1977 awarded the mother custody of the child but no child support. In March 1978 the wife received $10,000 for the sale of eight of the 20 acres she had received in the property settlement. The wife sued for child support in July, 1978. The Third Circuit specifically held that the agreement could not waive forever the child’s right to support. It also stated that the agreement waived the right to child support arrearages and to future child support to the extent of the value of the property received by the wife in the consideration of the waiver of the child support. The trial court, and the court of appeal, emphasized that the value of the property received should be considered against the expenses incurred in raising the child in order to determine whether plaintiff-wife was entitled to child support. It is significant that this case upheld the contract by stressing that the consideration received was so substantial that at the time of the suit, the mother could not have expended in support of the child the value of the property received by the mother in consideration for the child support waiver.

This case does not stand for the proposition that agreements to waive child support are fully enforceable; on the contrary it recognized the mother will have a valid cause of action for child support when she uses in support of the child all the consideration received for the waiver.

Appellant also relies upon the case of Seifert v. Seifert, 374 So.2d 157 (La.App. 1st Cir. 1979), which involved a rule to make past due child support payments exec-utory. The mother had waived child support in order to improve the appearance of the father’s financial circumstances for the purpose of aiding him to secure a Veterans Administration loan to buy a house. The First Circuit held that it was not contra bonos mores for a mother to waive child support. The First Circuit reasoned that a party in whose favor a judgment is rendered may waive rights under the judgment, citing Halcomb v. Halcomb, 352 So.2d 1013 (La.1977); Succession of Mioton, 201 La. 879, 10 So.2d 688 (1942); Henson v. Henson, 350 So.2d 979 (La.App. 2d Cir. 1977); Hodge v. Hodge, 338 So.2d 161 (La.App. 2d Cir. 1976); Caraway v. Caraway, 321 So.2d 405 (La.App. 2d Cir. 1975); writ denied 323 So.2d 479 (La.1975); Silas v. Silas, 300 So.2d 522 (La.App. 2d Cir. 1974); writ refused 303 So.2d 177 (La.1974); Odum v. Odum, 273 So.2d 576 (La.App. 1st Cir. 1973); Duplechan v. Duplechan, 270 So.2d 264 (La.App. 3d Cir. 1972). Although it is generally true that a party receiving rights under a judgment may waive these rights, our brothers of the First Circuit failed to recognize the overriding duty of support which a parent owes a child. Dubroc, supra, emphasized this duty, which is not waivable indefinitely or for a permanent time, and stated that the legal obligation of nourishment, support, and rearing which a parent owes a child may not be renounced or suspended except in special circumstances which do not include a waiver which results in a denial of support to the child without providing for it in some other manner. We conclude that Seifert, supra, is contra to Dubroc, and decline to follow Sei-fert.

Under certain circumstances our jurisprudence has recognized that child support may be temporarily waived, as when a father (the non-custodial parent) takes custody of a child and the mother agrees to a reduction in child support, Dubroc, supra, or when a mother agrees to accept child support in the form of the father paying part of the mortgage on the family home, Hodge, supra, or when the mother agrees that the father may send the child support direct to the child who is away in college, Odum, supra. Child support has been suspended even when the mother did not specifically agree to the suspension when she delivered the physical custody of the children to their father who provided directly for their support. See Henson, Caraway, and Silas, supra.

The Succession of Mioton, supra, relied upon by Seifert, supra, involved the waiver of alimony by a wife and is therefore inapplicable to a waiver of child support, and we also conclude that the Duplechan case cited by Seifert also was principally concerned with an alimony waiver by the former wife and is not authority for the waiver of child support. The alimony waivers in each of these cases were made by former wives to assist their former husbands who were having financial troubles. The waivers were enforced though supported by no consideration, and in this circumstance were similar to the child support waiver which was enforced in Seifert.

We rely upon the rule of Walder and Dubroe, supra, that the duty of a father to support a minor child is a continuing one and cannot be escaped by a waiver which purports to be permanent and everlasting in its import.

“Neither the parents nor a court decree can permanently set aside the duty of support.” Dubroc, supra, at p. 380, Fn. 3.

The defendant owed plaintiff 52 weeks of child support or the sum of $3120 at the time the community property settlement was executed. This past due child support indebtedness we believe exceeded the value of defendant’s one-half interest in the community which he conveyed to plaintiff. It is also significant that plaintiff did not seek to enforce the child support judgment for the 208 weeks following the community property settlement, being the period from July 1973—-July 1977, during which period defendant’s accrued child support obligation would have been approximately $12,480. Under these circumstances any obligation he had to pay this sum prescribed. Plaintiff here only sued for the child support accruing during the 156 weeks preceding the institution of her suit on July 7, 1980.

These facts compel the conclusion that if the value of defendant’s property received by plaintiff in the community property settlement were prorated against defendant’s unpaid child support obligations set forth in the judgment, it would have been exhausted by plaintiff in support of the children long before July 1977. For this reason the agreement to waive the child support insofar as it is applicable to the child support here sued for is unenforceable because the agreement denied

“support payment under circumstances contrary to the child’s [here children] interest, would be inimical to the ultimate goal of support and upbringing of the child.” Dubroe, supra, at p. 380.

Appellant contends that plaintiff by executing the waiver of child support in the community property settlement is estopped to now claim child support under the judgment. He cites no case where estoppel has been applied to deny child support where it is necessary for the maintenance and upbringing of the child.

We note that the value of the property which defendant divested himself of in the community property settlement was far less than the child support owed under the judgment which plaintiff never sought to collect, and therefore, by executing the community property settlement defendant made no change of position to his detriment, and this is an essential element to the application of the doctrine of equitable es-toppel. Wilkinson v. Wilkinson, 323 So.2d 120 (La.1975).

Defendant urges the defense of payment of his child support obligation by his conveyance of his one-half interest of the community property to plaintiff. Our earlier evaluation of the value of appellant’s interest in the community property from the few facts available in the record on which to determine the value of defendant’s interest clearly establish that appellant has made no payment of child support which was accrued in the judgment which he has appealed.

The judgment is affirmed at appellant’s cost.


text:
    KISATCHIE INVESTORS, INC., Plaintiff-Appellant, v. Joseph Willard BROUSSARD, Ada Ricks Broussard, Robert Harland Driver, Jean Ricks Driver and Unknown Heirs or Unproved Assigns of Zena Wilson Lewis, Defendants-Appellees.
    No. 14509.
    Court of Appeal of Louisiana, Second Circuit.
    March 23, 1981.
    Gamble & Sledge by Jack R. Gamble, Jr., Mansfield, for plaintiff-appellant.
    Kennedy, Goodman & Donovan by Rellis P. Godfrey, Shreveport, for defendants-ap-pellees, Joseph Willard Broussard, Ada Ricks Broussard, Robert Harland Driver and Jean Ricks Driver.
    W. T. Pegues, Mansfield, for defendants-appellees, Unknown Heirs or Unproved Assigns of Zena Wilson Lewis.
    Before HALL, PRICE and JASPER E. JONES, JJ.
   HALL, Judge.

Plaintiff, Kasatchie Investors, Inc., filed this suit to partition by licitation a 70-acre tract of land in DeSoto Parish under the provisions of LSA — C.C.P. Arts. 4621, et seq., providing for partition when a co-owner is an absentee. Plaintiff alleged its ownership of an undivided 172/560 interest in the property and alleged that the remaining interests were owned by defendants in the following proportions: Jean Ricks Driver (140/560), Ada Ricks Broussard (140/560), Robert Harland Driver and Jean Ricks Driver (27/560), Joseph Willard Broussard and Ada Ricks Broussard (27/560) and the unknown heirs of Zena Wilson Lewis (54/560). An attorney at law was appointed to represent the absent heirs of Lewis in accordance with LSA — C.C.P. Art. 4623 and notice of publication was ordered in accordance with LSA — C.C.P. Art. 4624. The Driver and Broussard defendants answered, admitting plaintiff’s fractional ownership, alleging they had acquired the interest of the only heir of Lewis and alleging that the property was divisible in kind and should be partitioned in kind. An answer was also filed by the attorney appointed to represent the alleged absentee.

At trial evidence was offered concerning the heirship of the decedent Lewis and concerning the divisibility of the property in kind. In written reasons for judgment the trial court found that one Emmett Lewis, an adopted son, was the sole heir of Zena Wilson Lewis and that he had conveyed his interest in the property to the Driver and Broussard defendants. The court further found that the evidence was conclusive that the property is susceptible of being partitioned in kind “on an acreage basis.” Judgment was rendered decreeing that the plaintiff is the owner of an undivided 172/560 interest in the property and that the Broussard and Driver defendants are the owners of an undivided 388/560 interest. The judgment further ordered a partition in kind of the property and decreed “that the partition is to set aside a tract of land containing 21.5 acres for Kisatchie Investors, Inc. and another tract of land containing 48.5 acres for the defendants, as a unit.” A notary public was appointed to make the partition in accordance with law.

Plaintiff appealed and specifies that the trial court erred: (1) in holding that Emmett Lewis is the sole heir of Zena Wilson Lewis and recognizing title in those who acquired through him; (2) in failing to find that the property should be partitioned by licitation under LSA — C.C.P. Art. 4621 since there was an absentee defendant; and (3) in failing to find that the property was indivisible by its nature and could not be conveniently divided within the meaning the LSA — C.C. Art. 1339 and LSA — C.C.P. Art. 4606.

A certificate of death established that Zena Lewis, whose husband was Solomon Lewis, was born April 10, 1887 and died in Shreveport May 20, 1962. A certified copy of an act of adoption established that Zena Lewis and her husband adopted one Emmett Oliver as their own child. Other evidence established that Emmett Lewis survived his adoptive mother. Although evidence negating the possibility of other heirs of Zena Lewis was meager, the trial court correctly concluded on the basis of the best available evidence and a preponderance of the evidence that Emmett Lewis was the sole heir of Zena Lewis. It was established that Emmett Lewis conveyed all of his interest in the property to the Brous-sard and Driver defendants. It follows that plaintiff did not prove that there was a defendant who is an absentee and who owned an interest in the property as required by LSA — C.C.P. Art. 4625. Accordingly, plaintiff is not entitled to seek a partition by licitation regardless of whether the property is divisible in kind or not under the provisions of LSA — C.C.P. Arts. 4621, et seq.

The evidence on whether the property can be divided in kind without a diminution in value is close. Plaintiff’s expert forester testified that if the 70-acre tract of timberland were divided into smaller tracts, the value of the tracts would be less than the value of the whole because the smaller the tract the less value it has for timber-growing purposes. Other factors weighing against a division in kind were that only one corner of the property fronts on a public road and different parts of the property have different suitabilities for growing timber. Defendants’ expert forester testified that the division of the already relatively small timberland tract into smaller tracts would not have any significant effect on the value of each tract as compared to the value of the whole.

The expert testimony and the trial court’s decision were based on the incorrect premise that if the property was divided in kind plaintiff would receive a 21.5-acre tract and the defendants would receive a 48.5-acre tract. Under the articles of the Civil Code governing partitions in kind, a certain part or parts of the property cannot be set apart or allocated to any one of the co-owners. The property must be divided into lots, which lots are afterward drawn for by the parties. The lots are set apart to the different co-owners by chance, by drawing for them. There must be as many lots as there are shares or roots involved. LSA—C.C. Arts. 1364 and 1367; Pryor v. Desha, 204 La. 575, 15 So.2d 891 (1943); Raceland Bank & Trust Co. v. Toups, 173 La. 742, 138 So. 652 (1931); Tri-State Concrete Company Inc. v. Stephens, 395 So.2d 894 (La.App.2d Cir. 1981); Taylor v. Bell, 155 So.2d 68 (La.App.2d Cir. 1963). The judgment ordering certain tracts set apart or allocated to the respective parties cannot stand.

Because of the fractional ownership involved in this case, to effect a partition in kind the 70-acre tract would have to be divided into multiple smaller tracts, which would have to be drawn for by the plaintiff and defendants. The tracts drawn might or might not be contiguous. The result would be a diminution in value of each tract as related to the value of the whole. Since a partition in kind would result in a diminution of the value of the property and loss or inconvenience to one or more of the owners, the property should be partitioned by Imitation.

For the reasons assigned, the judgment of the district court is affirmed insofar as it decreed the respective ownership interests in the property. Insofar as the judgment ordered a partition in kind it is reversed and set aside and it is now ordered, adjudged and decreed that the property described in the judgment of the district court be sold at public sale to effect a partition by licitation in accordance with law. This action is remanded to the district court for further proceedings. Costs of the appeal are to be borne by the parties in proportion to their respective interests in the property, as the district court judgment provides for other court costs.

Affirmed in part, reversed in part, and remanded.


text:
    STATE of Louisiana in the Interest of Charles V. TOORAEN, II.
    No. 14510.
    Court of Appeal of Louisiana, Second Circuit.
    March 23, 1981.

      Love, Rigby, Dehan, Love & McDaniel by William G. Nader, Shreveport, for petitioner-appellant, Janette M. Tooraen.
    Burnett, Sutton, Walker, Callaway & Smith by Bobby D. Sutton and Glenn E. Walker, Shreveport, for Charles H. Too-raen, Virginia K. Tooraen and State of La.
    Paul J. Carmouche, Dist. Atty., by Steven M. Waller, Shreveport, for the minor, Charles V. Tooraen, II.
    Before PRICE, MARVIN and JASPER E. JONES, JJ.
   MARVIN, Judge.

The plaintiff mother appeals a judgment rejecting her demands to obtain custody of her five-year-old son who was adjudicated a ward of the juvenile court about 20 months before “for the purpose of enabling the child to receive adequate care and protection ...” under CJP 17 A(2) when neither parent of the child was able to provide for him.

In Burt v. McKee, 384 So.2d 489 (La.App.2d Cir.1980), we recognized the principle that in custody contests between a parent and a non-parent, the parent must prevail unless the record affirmatively shows that parent’s unfitness or forfeiture of parental rights. Here, unlike In the Interest of May, 385 So.2d 910 (La.App.2d Cir.1980), this child was adjudicated in need of care in an adversary proceeding against the parents by the State.

Once a child has been adjudicated in need of care the custody of that child may be restored to the parents when the conditions and circumstances justify the change of custody. Art. 93 CJP. The burden of proving that a child is in need of care is on the State. CJP 73. The burden of proving justification for modification of a custody disposition of a child earlier found in need of care (CJP 93) is on the party who seeks to modify the disposition of custody. See Abreo v. Abreo, 281 So.2d 695 (La.1973); Languirand v. Languirand, 350 So.2d 973 (La.App.2d Cir.1977).

This record shows that this mother has not met her burden, but has fabricated her “changed" circumstances in her effort to justify modification of custody. She admitted that she lied about her stability and her employment “so it would look good in the courts ... so I would have a job and show that I was responsible enough to have my child back.” At best, she has shown only that she has made application for employment and that she has signed a lease on an apartment which she cannot afford to furnish or maintain. She has not demonstrated (or made a “track record”, as the lower court stated) that she has changed her life style sufficient in time or degree, to justify modification of the custody disposition. See Deville v. LaGrange, 388 So.2d 696 (La.1980); Wood v. Beard, 290 So.2d 675 (La.1974).

This mother, by seeking to regain custody of her child, has indicated her good intention to establish herself as a fit and responsible parent. Should she later seek to modify the juvenile court’s custody disposition, she' should comply with the provisions of Art. 92 CJP and cause service, of her motion to modify upon the necessary or indispensable parties mentioned therein, “. . . the child, his parent (here the father), the probation officer, the district attorney, and any person, institution, or agency to whom the custody of the child has been assigned.” See also CJP 51.

For reasons assigned by the juvenile court and summarized and supported here, and at the cost of appellant, judgment is AFFIRMED.


author: SUGG, Justice,

text:
    Sammy GRAHAM et ux. v. Larry E. ANDERSON et ux.
    No. 52486.
    Supreme Court of Mississippi.
    March 18, 1981.
    Rehearing Denied May 6,1981.
    E. Howard Eaton, Taylorsville, for appellants.
    Dan C. Taylor, Travis Buckley, Ellisville, for appellees.
    Before PATTERSON, SUGG and WALKER, JJ.
   SUGG, Justice,

for the Court:

The question in this case is whether an offer to sell land was accepted in accordance with the terms of the offer.

Larry E. Anderson and wife, Melda Kay Anderson, filed an amended bill of complaint for specific performance against Sammy Graham and wife, Rhonda Graham in the Chancery Court of Jasper County. The Grahams have appealed from a final decree ordering them to convey 33 acres of land to the Andersons.

The Grahams agreed to sell the Ander-sons their home and 33 acres of land and executed an option which provided in part, “The total purchase price for said property is $45,000 ...” The option also contained the following provisions:

This option is given to enable the Buyer to obtain a loan insured or made by the United States of America, acting through the Farmers Home Administration, United States Department of Agriculture, (hereinafter called the “Government”), for the purchase of said property. It is agreed that the Buyer’s efforts to obtain a loan constitute a part of the consideration for this option and any downpayment will be refunded if a loan cannot be processed by FmHA.

At the time the option was executed there were outstanding three deeds of trust on the land. The first was executed in 1970 in favor of Farmers Home Administration and secured a note in the amount of $9,000, the second was executed in 1973 in favor of Farmers Home Administration and secured a note in the amount of $17,000 plus the previous note of $9,000, and the third was executed in 1975 in favor of Commercial National Bank and secured a note in the amount of $6,066.

The evidence relating to the acceptance of the offer to purchase by the Andersons was by Larry Anderson. He testified he obtained a commitment from Laurel Federal Savings and Loan Association for a loan in the amount of $24,000. The loan included $3,000 to pay off a loan which Anderson incurred to build a swimming pool at the house then owned by him. He stated he intended to pay the Grahams $45,000, (1) by assuming the Graham loan with the Farmers Home Administration, (2) by paying off the Graham loan to Commercial National Bank, and (3) by paying the difference between the purchase price and the amounts the Grahams owed Farmers Home Administration and Commercial National Bank. He also testified that Farmers Home Administration would subordinate its mortgage to Laurel Federal so Laurel Federal would have a first lien on the property he was purchasing from the Grahams.

In order to determine whether the Grahams’ offer to sell was accepted by the Andersons in accordance with the terms of the offer, we must determine the question in accordance with our decisions. In Welch v. Williams, 85 Miss. 301, 37 So. 561 (1904) the general rule with reference to enforcement of specific performance of contracts was stated as follows:

[T]he contract must be specific and distinct in its terms, plain and definite in its meaning, and must show with certainty that the minds of the parties had met and mutually agreed as to all its details upon the offer made, upon the one hand, and accepted, upon the other. If any of these requisites be lacking, specific performance will not be decreed by a court of equity. (85 Miss. at 303, 304, 37 So. at 561)

This rule has been followed consistently as shown by the following cases. Tagert v. Tagert, 381 So.2d 597 (Miss.1980); Thomas v. Bailey, 375 So.2d 1049 (Miss.1979); Hutton v. Hutton, 239 Miss. 217, 119 So.2d 369, cert. denied 364 U.S. 834, 81 S.Ct. 67, 5 L.Ed.2d 60 (1960); Fowler v. Nunnery, 126 Miss. 510, 89 So. 156 (1921); Phelps v. Dana, 121 Miss. 697, 83 So. 745 (1920).

In Robinson v. Martel Enterprises, Inc., 337 So.2d 698 (Miss.1976) we- held that it is incumbent upon an optionee to exercise the option in the manner provided in the contract, and unless such requirements are waived, his failure to do so, or his attempt to exercise it in another manner, does not operate to form a binding contract of sale.

The acceptance of the offer of the Grahams to sell their land to the Andersons was not in accordance with the option contract because the deeds of trust executed by the Grahams in favor of the Farmers Home Administration would not be discharged. The Grahams would remain liable for the debt secured by these deeds of trust under our decision in Smith v. General Investments, 246 Miss. 765, 150 So.2d 862 (1963). In Smith we held that an agreement by the grantee of mortgaged premises to assume and pay the mortgaged debt did not release the grantor of the mortgaged premises from liability for the debt.

The Andersons did not accept the offer of the Grahams to sell in accordance with the provisions of the option contract because they did not tender the Grahams $45,000. Instead, the Andersons made, a tender which constituted a counter offer. The Andersons, according to their tender, would assume the Farmers Home Administration deeds of trust which were to be subordinated to a deed of trust to be executed in favor of Laurel Federal. The option was given to enable the Andersons to secure a loan from the Farmers Home Administration for the purchase price of the property. It is clear from this provision of the option that the Andersons were to tender the Grahams $45,000 for the purchase price of the property. Out of this sum the Grahams would have been required to discharge the outstanding deeds of trust to the Farmers Home Administration and the Commercial National Bank because other provisions of the option required the Grahams to convey the property free of all incumbrances.

The Andersons’ tender, instead of allowing the Grahams to pay the outstanding deeds of trust out of the purchase price, would have left the Grahams liable under the 1970 and 1973 deeds of trust executed by them in favor of the Farmers Home Administration, but would have subordinated these deeds of trust to the deed of trust which the Andersons proposed to execute in favor of Laurel Federal. The counter offer was not acceptable to the Grahams so the tender was inoperative because it was not in accord with the offer of sale. Accordingly, we hold the chancellor erred in decreeing specific performance, and we therefore reverse and render on this question.

However, it is necessary to remand this case because of events that occurred subsequent to the rendition of the decree. After the decree was rendered the Grahams appealed but did not appeal with supersedeas. The trial court appointed a special commissioner who executed a warranty deed to the Andersons to the land in question. The report of the special commissioner shows that out of the proceeds of the sale the indebtedness due the Commercial National Bank by the Grahams was paid. No doubt other payments have been made by the Grahams on the Farmers Home Administration deeds of trust. We therefore remand this case to the trial court to adjust the equities between the parties.

We therefore reverse, cancel the commissioner’s deed, and remand this case to the trial court for further proceedings not inconsistent herewith.

REVERSED AND REMANDED.

PATTERSON, C. J, SMITH and ROBERTSON, P. JJ., and WALKER, BROOM, LEE, BOWLING and HAWKINS, JJ., concur.


text:
    Dora Lillian RUSSUM v. John Robert RUSSUM, Sr.
    No. 52489.
    Supreme Court of Mississippi.
    March 25, 1981.
    Rehearing Denied May 6, 1981.
    John L. Kearney, Pine Bluff, Ark., for appellant. •
    Jerry T. Johnston, Johnston, Adams & Younger, Brandon, for appellee.
    Before PATTERSON, C. J., and SUGG and WALKER, JJ.
   Appeal from Chancery Court, Rankin County; Billy G. Bridges, Chancellor.

AFFIRMED.


author: ROBERTSON, Presiding Justice,

text:
    Milton GIESBRECHT et al. v. Mary Ann Barbieri SMITH et al.
    No. 52264.
    Supreme Court of Mississippi.
    March 25, 1981.
    Rehearing Denied May 6, 1981.

      Charles M. Merkel, Holcomb, Dunbar, Connell, Merkel, Tollison & Khayat, Clarks-dale, for appellants.
    Lomax B. Lamb, Jr., Larry 0. Lewis, Caldwell & Lewis, Marks, for appellees.
    Before ROBERTSON, P. J., WALKER and BOWLING, JJ.
   ROBERTSON, Presiding Justice,

for the Court:

Milton Giesbrecht and wife, Modessa K. Giesbrecht, the Federal Land Bank of New Orleans,' and Harry F. Beacham, Trustee, appeal from the December 17, 1979, Decree of the Chancery Court of Coahoma County canceling as clouds on the title of Mary Ann Barbieri Smith, et al:

1. Warranty Deed from Tony Morris to Rocco G. Morris and his wife, Dorothy L. Morris, dated December 6, 1973, and recorded in Book 436 at Page 329.
2. Warranty Deed from Rocco G. Morris and his wife, Dorothy L. Morris, to Llewellyn E. Nickel and his wife, Rhonda Gaye Nickel, dated October 9; 1974, and recorded in Book 444 at Page 515.
3. Warranty Deed from Llewellyn E. Nickel and his wife, Rhonda Gaye Nickel, to Milton Giesbrecht and his wife, Modessa K. Giesbrecht, dated January 5,1977, and recorded in Book 469 at Page 329.
4. Deed of Trust from Milton Giesbrecht and his wife, Modessa K. Giesbrecht, to Harry F. Beacham, Trustee for the Federal Land Bank of New Orleans, beneficiary, securing the payment of a note for $39,000, which deed of trust is dated January 11, 1977, and recorded in Book 468 at Page 491.

In its decree, the court also found that Milton Giesbrecht and his wife owed rent on the 80 acres of land (the subject of this litigation) to the complainants “from and after the death of Tony Morris on April 13, 1977;” and that Milton Giesbrecht and his wife were not entitled to any reimbursement for extensive improvements made by them to the 80 acres of land. The court stated in its decree that its decision was mandated by the opinion of this Court in Smith, et al. v. Bank of Clarksdale, et al., (Cause No. 51,097), 374 So.2d 776 (Miss.1979):

The defendants-appellants have assigned as error:

I. The Court erred in sustaining the demurrers of Mary Ann Barbieri Smith and her children which in effect denied to Milton Giesbrecht and Modessa K. Gies-brecht their claimed status as bona fide purchasers for value without notice of the subject 80-acre tract.
II. The Court erred in ruling that the Giesbrechts were not entitled to the value of improvements made by them upon the 80-acre tract in question based upon the finding that the 1979 holding of the Court in Smith v. Bank of Clarksdale had the effect of retroactively charging the Giesbrechts with implied notice of title defects in Tony Morris’ title.
III. The Court erred in awarding rents to Smith and her children from Giesbrecht for the use of his land.
IV. The Court erred in taxing costs of the proceeding in the lower court against Appellants.

In Smith, supra, the only party named as a Defendant, in Mary Ann Barbieri Smith’s original Petition “To Declare Null and Void the Decree Reopening Estate Allowing Election of Real Estate and for Other Relief”, was Bank of Clarksdale, Executor of the Estate of Tony Morris, deceased. By “Amendment of Petition” filed April 6, 1978, which opened with this language:

“Petitioners are informed and believe, and on information and belief allege, that the following persons are in possession of or claim interests in real property owned by Angeline A. Morris, decedent, at the time of her death which conflict with the claim of petitioners to ownership of said lands and who will or may be affected by a decision in this cause, namely:”

she added Milton Giesbrecht and his wife, Modessa K. Giesbrecht; The Federal Land Bank of New Orleans; Harry F. Beaeham, Trustee; Rocco G. Morris and his wife, Dorothy L. Morris, as the owners of certain mineral interests; and Joe Morris and Louis Morris, the two living remaindermen under the will of Tony Morris, deceased. In neither the Petition nor Amendment thereto did she describe any particular land. She charged that she was the owner of all lands owned by Angeline A. Morris at her death, and she dealt with all lands as a whole.

The only place in the amendment to the petition that the Giesbrechts are mentioned is in the opening paragraph. Smith did not pray for any relief against the Giesbrechts, praying only that:

“[U]pon the hearing of this petition, that the said decree entered by this Court in this cause on September 1, 1972 be declared null and void and of no effect, and that the lands described in said decree as constituting a devise to Tony Morris, deceased, be declared null and void, and that the lands named in said decree be declared to be the property of your petitioners herein under the last will and testament of Angeline A. Morris, deceased.”

In Cause No. 51,097, Smith, supra, on the page before the court’s opinion, is this Motion made by Mrs. Smith’s counsel:

“Come the parties, complainants, petitioners and defendants and jointly move the court for a hearing in advance of trial on the issue of the legal effect of the court orders entered in the Angeline A. Morris Estate, based on the January 21, 1970, petition for discharge of the executor, the decree of the court on January 23, 1970, the petition to reopen the estate filed on September 1,1972 and the decree of the court entered on September 1, 1972, as reflected in the pleadings and the matters stipulated on record with the ruling to have effect on the three causes which are consolidated this day for trial.” (Emphasis added).

The court sustained this joint motion and rendered its interlocutory opinion and amended interlocutory decree without taking any testimony.

The record in Cause No. 51,097 consists of a total of 97 pages. It consists only of the pleadings in Cause No. 16,528, the complete U.S. Estate Tax Return (consisting of 21 pages) filed in 1968, and the court’s opinion and amended interlocutory decree on “the issue of the legal effect of the Court Orders entered in the Angeline A. Morris Estate” as asked for in the joint motion. No pleadings in Causes numbered 21,318 and 21,343, which causes were to be consolidated for trial (according to the joint motion) were in the record of No. 51,097, Smith, supra. When No. 51,097 was decided by this Court, causes numbered 21,318 and 21,343 were not even before this Court.

In its “Amended Interlocutory Decree” of June 21, 1978, all that the chancery court in Smith, supra, decided was:

“a) The January 23, 1970, Decree entered in the Estate of Angeline A. Morris discharging the executor was incomplete and inadequate, failed to give effect to the Will of Angeline A. Morris, and cannot be considered as a decree of distribution.
b) The September 1, 1972, decree is void for want of proper notice to all interested parties.
c) All parties interested in the Estate of Angeline A. Morris are presently before the Court, and it is fitting and proper that the administration of said Estate now be concluded with a proper Decree of Distribution being entered therein.
d) Petitioners Mary Ann Barbieri Smith and her children are granted leave to appeal from this interlocutory decree without supersedeas.”

This complete history of Smith, supra (Cause No. 51,097), is repeated to show beyond peradventure that neither the chancery court nor this Court had before it, in Cause No. 51,097, the defense of bona fide purchaser for value without notice as to the Giesbrechts, or the defense of bona fide encumbrancer for value without notice as to The Federal Land Bank.

When attorneys for the Giesbrechts and for The Federal Land Bank checked the title to this 80 acres in January, 1977, there was of public record in Will Book 11 at Page 475 the Last Will and Testament of Angeline A. Morris, deceased, who departed this life on March 13, 1968, and whose last will and testament was probated in common form on October 14,1968. That will provided, among other things:

ARTICLE II.
I give, devise and bequeath unto my beloved husband, Tony Morris, an amount equal to the maximum marital deduction allowable under federal estate tax laws, with respect to my estate. The determination of this amount shall be prior to any deduction for state, inheritance, or succession taxes. This bequest shall be paid by my Executor from the personal property of my estate, after provision is first made by my Executor from such personal property for the payment of all my debts and expenses of administration. Should the remainder of the personal property assets of my estate be insufficient so as to not equal the maximum marital deduction allowable under the federal estate tax laws, then the balance thereof shall be taken and discharged from real property owned by me at my death, with a choice of such real property to be made by my beloved husband. (Emphasis added).
ARTICLE VI.
I hereby name, nominate, appoint and constitute my beloved husband Tony Morris as Executor of this my Last Will and Testament; and it is my wish and will, and I do hereby order and direct that my said Executor shall not be required to give bond or other security as such in this or any other jurisdiction wherein proceedings may be required to be instituted in connection with this, my Last Will and Testament. Nor shall my said Executor be required to prepare and state an appraisal or account of my estate except insofar as the same may be required by the taxing authorities of the United States of America or the State of Mississippi. (Emphasis added).

There was also of public record the complete administration of the Estate of Angeline A. Morris, deceased, from beginning to end by the same chancellor of the same chancery court (which had unquestioned jurisdiction of the subject matter and the parties). The decree of January 23, 1970, closing the estate and discharging the executor had been of public record since its date. The petition to reopen and to make a matter of record the selection of real property to complete the specific bequest and devise of the maximum marital deduction allowable under Federal estate tax laws to Tony Morris, the husband of Angeline A. Morris, and the detailed decree granting all the relief prayed for in the petition had been a matter of public record since September 1, 1972, when the decree was recorded in Minute Book 72 at Page 52 and also in Deed Book 421 at Page 177 of the Land Deed Records of Coahoma County. This decree clearly and unequivocally found and ordered that the 80 acres (now in dispute) was the property of Tony Morris in fee simple.

There was also of public record:

1. A general warranty deed from Tony Morris to Rocco G. Morris and his wife, Dorothy L. Morris, dated December 6, 1973, and promptly recorded in Deed Book 436 at Page 329.
2. A general warranty deed from Rocco G. Morris and his wife, Dorothy L. Morris, to Llewellyn E. Nickel and his wife, Rhonda Gaye Nickel, which deed was dated October 9, 1974, and promptly recorded thereafter in Land Deed Record Book 444 at Page 515.

8 Thompson on Real Property, § 4312, (1963), states:

“The law is firm on this point that if the record truly kept as provided by state law shows title in one, then another who is a bona fide purchaser for value without notice from such record title holder acquires title as against the world regardless of what prior transfers may have been made by the record owner. To so receive the protection of the law and to be its favorite child he must: (a) be a ‘purchaser,’ not a donee, heir or devisee, (b) be ‘bona fide,’ that is, act in good faith, (e) have paid ‘value’ as the law requires value and (d) be without ‘notice,’ actual or constructive of .the claims of others to or against the property.
The courts define a bona fide purchaser to be one who has in good faith paid a valuable consideration without notice of the adverse rights in another.” Vol. 8 at page 363. (Emphasis added).

In 77 Am.Jur.2d, Vendor and Purchaser, § 633, (1975), we find this language:

“It has been declared that the soundest reasons of justice and policy demand that every reasonable intendment should be made to support the titles of bona fide purchasers of real property, and that no equity can' be any stronger than that of a purchaser who has put himself in peril by purchasing a title for a valuable consideration without notice of any defect in it.” 77 Am.Jur.2d at page 754.

Another fatal defect in the case at bar is that the general warranty deed from Rocco G. Morris and wife to Llewellyn E. Nickel and his wife, Rhonda Gaye Nickel, and the general warranty deed from them to the Giesbrechts, are canceled and the Nickels were not even named or summoned as parties defendant.

To the Giesbrechts’ and The Federal Land Bank’s motions to amend their answers in order to assert their respective defenses of bona fide purchasers for value without notice, and bona fide encumbrancer for value without notice, petitioners made oral general and special demurrers, which were sustained by the lower court.

The lower court was in error in sustaining the oral general and special demurrers to the motions to amend answers; and the court was in error in holding that its decision in the case at bar was mandated by the decision of this Court in Cause No. 51,097, styled Smith, et al v. Bank of Clarksdale, 374 So.2d 776 (Miss.1979), and in effect holding that this matter was res ad judicata.

The decree of the lower court is reversed and the cause remanded for a trial on the merits.

REVERSED AND REMANDED.

PATTERSON, C. J., SMITH, P. J., and SUGG, WALKER, BROOM, LEE, BOWLING and HAWKINS, JJ., concur.