Bogart v. Caldwell - 66 So. 2d 629, 1953 La. App. LEXIS 748

Rule:

The heritable obligation under a contract, is one from which there arises the right of the heirs and assigns of one party to enforce the performance against the heirs of the others. Heritable obligations and stipulations give to and impose upon heirs, assigns and other representatives the same duties and rights that the original parties had and were liable to, except that beneficiary heirs can only be liable to the amount of the succession. Under La. Civ. Code Ann. arts. 1997 and 2008, every obligation shall be deemed to be heritable as to both parties, unless the contrary be specially expressed or necessarily implied from the nature of the contract.

Facts:

Appellant Fannye Mae Bogart is the widow of Harry Dalton Bogart, Jr., who died intestate on October 1, 1951. During the existence of the community between Fannye and her late husband, the latter purchased from defendant John L. Caldwell, Sr. the property known as the Strand Theater in Farmerville, paying as consideration therefor $ 60,000 of which $ 30,000 was paid in cash and the remainder payable in monthly installments. Harry borrowed the cash or down payment from his father, Henry D. Bogart, Sr., and as security for this loan a second mortgage on the property was executed. From the date of its purchase the Strand Theater has been in continuous operation, first by Bogart, and, after his death by his widow. The entire ownership of said property is presently in Fannye, she having acquired the one-half interest that became part of the Henry D. Bogart, Jr. estate by reason of inheritance from her husband and through purchase from the decedent's father and mother of the interest inherited by them, decedent being without issue. Fannye, of course, as a partner of the community with her husband, owned a one-half interest in said theater in her own right after June 30, 1951. On January 30, 1952, after being informed Caldwell was preparing to commence the operation of a motion picture show business in the Union Theater building in Farmerville, Fannye, through her attorney, wrote Caldwell a letter calling to his attention provisions in the contract between him and her deceased husband, wherein it was agreed Caldwell would not open a motion picture theater in said building, and warning him she would take legal action to prevent him from doing so. Caldwell, however, did on March 2, 1952, open and commence the operation of a picture show business in the Union Theater building and the operation thereof by Caldwell is presently continuing. Because of this, Fannye filed an action seeking injunctive relief to prevent the competitor from operating a competing movie theater. The trial court ruled against Fannye and denied her demand.

Issue:

Does the death of Bogart resulted in a cessation of his ownership, and consequently the termination of the obligation?

Answer:

No.

Conclusion:

Manifestly, the obligation not to operate a competitive picture theater can by no stretching of the imagination be said to exist for the personal gratification of the obligee and it is productive of financial benefit to the heirs of the obligee. It is not the sort of personal obligation that ends with the death of the obligee. It is a heritable obligation the right to which is enforceable by the heirs of the obligee. In the confection of the act of sale there was inserted a provision the vendee was purchasing with his separate and paraphernal funds. This statement is refuted by other provisions in the act of sale, that is to say the vendee is declared to be living with his wife, and that half of the consideration was to be paid under terms of credit. The funds used, therefore, were not obtained from the separate property of Bogart. Counsel for the defendant concede that the property acquired entered the community of acquets and gains, but they argue that the clause is material as evidence of limitation upon the obligation of Caldwell as existing only for Bogart and not for his wife or his heirs. The argument, we think, is untenable. Though there was a brief separation between appellant and her husband prior to the execution of the deed, the inference is not warranted that he intended to use this means to circumscribe his property rights to the disadvantage of his heirs upon his own death. It is conceivable that the non-operation of a rival motion picture show in a town of the size of Farmerville could make the difference between profit and loss in the operation of the Strand Theater. Caldwell in first offering the Strand Theater for sale to Bogart realized this and himself proposed that if Bogart purchased one of the shows owned by him, he would not keep the other open. The codal provisions heretofore referred to clearly show the subject obligation was not strictly a personal obligation that ceased upon the death of the obligee, but being a heritable obligation it continued in existence under the ownership of Bogart's surviving widow. Where, as in this instance, the obligation be not to do, the obligee may demand the obligor be restrained from doing anything in contravention of it in cases where he proves an attempt to do the act covenanted against.