Marcellous v. David - 252 So. 2d 178 (La. Ct. App. 1971)

Rule:

Under La. Civ. Code Ann. art. 1536, every donation inter vivos of immovable property must be by an act passed before a notary public and two witnesses.

Facts:

Defendant Mrs. Coralie David, who is 80 years of age, was living alone in a house in the country and desired to move to the town of Breaux Bridge. Her only income was from Welfare and her only possession was this house. She proposed to various members of her family that if one of them would buy a lot in Breaux Bridge and pay for the expense of moving the house to the lot and installing a cess pool and then let her live there rent free for the remainder of her life, she would execute a will leaving the house to the owner of the lot. This proposal was finally accepted by defendant's niece, Gloria Jones Marcellous, wife of the plaintiff, George Marcellous. George also agreed to the proposition and purchased two lots in Breaux Bridge to which the house was moved. It was placed on brick pillars a cess pool was installed and attached to the plumbing, and George Marcellous painted the building. At about the same time, Coralie David executed a will leaving all of her property to Gloria. Coralie David lived in the house rent free for almost two years. During this time she made improvements to the building at a cost of about $1200. In 1969, difficulties arose between Coralie David and her niece. Finally, Mrs. David contacted her brother, Alex Lewis Jean, and requested that he help her move her house from George’s lot. Alex purchased a lot, about two doors away, and had the house moved to it. George thus filed the instant suit for the return of a building and for damages caused by its wrongful removal from his land. The district judge found the building was owned by the defendant, Coralie David, and hence rejected George’s demand for return of the building and damages. However, the court awarded George his actual expenses of $245 for moving the house to his land and painting it, under the equitable principle of unjust enrichment.

Issue:

Did Coralie David retain ownership of the house while it was still located on George’s lot?

Answer:

Yes.

Conclusion:

Since she owned the house before it was moved to plaintiff's lot, she remained the owner unless she conveyed it to George and Gloria. George contends ownership of the house was transferred by an oral donation inter vivos. In the present case, there was no written instrument whatever and hence there was no donation inter vivos of this house. The only thing in writing was the will executed by Coralie David leaving all property of which she died possessed to her niece, Gloria Marcellous. Of course, the will did not take effect since Coralie David is still alive, and, furthermore, the will could be changed by the testatrix at any time before her death.

George also contends this is an onerous donation and that the rules peculiar to donations inter vivos do not apply, since in this case the value of the object given did not exceed by one-half that of the charges and services rendered by the donee. Even assuming that there was an onerous donation, and that Civil Code Article 1523, requiring an act before a notary and two witnesses, does not apply, there remains the fact that the object given in this case was an immovable, the transfer of which must be in writing. There was no written transfer of the house.

In sum, the evidence shows the ownership of the house remained in Coralie David while it was located on plaintiff's lot. In consequence, Coralie David had the right to move the house from plaintiff's lot and his demand for its return and damages must be rejected.