Chachere v. Superior Oil Co. , 192 La. 193 ( 1939 )

The doctrine of McDuffie v. Walker, 125 La. 152, 51 So. 100, which is founded upon article 2266 of the Civil Code, has no reference to an unrecorded title acquired by inheritance. It has reference only to contracts and judgments affecting immovable property. It was so decided in Long v. Chailan, 187 La. 507,175 So. 42. There is nothing contrary to that decision in the prevailing opinion in this case.

I concede, of course, that one who makes a simulated sale of his property will lose it if the person in whose name he has placed the title transfers it to a third party. But I am not so sure that that rule is applicable unqualifiedly to a case where a forced heir is suing to annul a simulated sale made by his ancestor from whom he inherits. In such cases the right of action of the forced heir is founded upon Article 2239 of the Civil Code, which, as amended by Act No. 5 of 1884, reads as follows:

"Counter letters can have no effect against creditors or bona fide purchasers; they are valid as to all others; but forcedheirs shall have the same right to annul absolutely and by parolevidence the simulated contracts of those from whom they inherit,and shall not be restricted to the legitimate."

I have italicized that part of the article which was added by the Act of 1884. This addition is the only amendment that was made by the Act of 1884. Before the article was amended it merely provided that counter letters could have no effect against creditors or bona fide purchasers but were valid as to all others.

Inasmuch as the prescription of ten years is a sufficient defense to this suit, I consider it unnecessary to decide whether the doctrine of McDuffie v. Walker, which is merely a restatement of Article 2266 of the Civil Code, is applicable to the case.

I concur, of course, in the opinion that the plaintiffs, by alleging in their petition that their ancestor, Theodore C. Chachere, Sr., bought the land after the death of his wife, have disclosed that they have no right of action as far as their claim by inheritance from Mrs. Chachere is concerned.