Westmore v. Harz

Citations

• 111 La. 305
• 35 So. 578
• 1902 La. LEXIS 178

Syllabus

<p>COMMUNITY PROPERTY—WHAT CONSTITUTES —RECOVERY OP LEGITIME—FORCED HEIRS— CONCUBINAGE—ESTOPPEL—PAROL EVIDENCE —DONATION.</p> <p>1. Property was bought by the community, the declarations in the deeds of purchase to the contrary notwithstanding.</p> <p>2. Tlie plaintiffs, son and daughter by a first marriage were entitled to the legitime.</p> <p>3. In the litigation instituted to recover their legitime and whatever further right they may have, it became evident that the declarations in the deed that the wife had bought the property with her paraphernal funds were not true.</p> <p>4. The court ordered that the property be returned to the mass, in order that the heirs may recover their legitime, and whatever may remain of -the community after the legitime shall have been paid.</p> <p>5. As relates to the community, the right is not limited to the legitime. Cole v. Cole, 2 South. 794, 39 La. Ann. 878; Spencer v. Louis, 1 South. 671, 39 La. Ann. 316; Moore v. War-tel, 3 South. 384, 39 La. Ann. 1070.</p> <p>6. Those who have lived together in concubinage have it in their power, by marrying, to do away with the provisions of the article of the Civil Code (article 1481) directed against concubinage.</p> <p>Nicholls, C. J., and Monroe, J., dissenting.</p> <p>On Rehearing.</p> <p>7. Though a husband be estopped from denying that property purchased during his marriage belongs to his wife, when the title is taken in her name, and he declares in the authentic act in which it was purchased that it was bought with her paraphernal funds, his children, being in law his forced heirs, are relieved entirely from the estoppel by the provisions of Act No. 5, p. 12, of 1884, .and permitted to show the actual facts of the case by parol evidence.</p> <p>8.Where the only parties to an act of sale of real property are the vendor and the vendee, the ownership of the property passed to the vendee. The children of a third person cannot, by means of parol evidence, have the property taken from th