Ronald R. Harvey, Gurney Dean Harvey, Faye Rhondette Harvey McGee and Whit Harvey VS Ella Kay Gurney White
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2009 CA 2141 RONALD R HARVEY GURNEY DEAN HARVEY FAYE RHONDETTE HARVEY McGEE AND WHIT HARVEY 4 1P VERSUS rt lll ELLA KAY GURNEY WHITE On Appeal from the 19th Judicial District Court Parish of East Baton Rouge Louisiana Docket No 458 Division D 635 Honorable Janice Clark Judge Presiding Thomas M Lockwood Attorney for Lockwood Rome LLC Baton Rouge LA Appellants Plaintiffs Ronald R Harvey Gurney Dean Harvey Faye Harvey McGee and Whit Harvey Daniel D Holliday III Attorneys for Baton Rouge LA Defendant Appellee Ella Kay Gurney White and Joseph E Juban Long Law Firm LLP Baton Rouge LA BEFORE PARRO KUHN AND McDONALD JJ Judgment rendered SEP 2 0 2010 PARRO J The plaintiffs appeal a trial court judgment dismissing their action to annul a purported act of cash sale in which they transferred property to the defendant For the following reasons the judgment is affirmed Factual and Procedural Background Ella Kay Gurney White Ms White and Alice Faye Gurney Harvey Mrs Harvey were the daughters of Louis D Gurney and Ella Dyer Gurney Mrs Harvey was married to Ronald R Harvey Of their marriage three children were born Gurney Dean Harvey Dean Faye Harvey McGee Faye and Whit Harvey Whit Ms White had been married to Charles White and had one child Joshua Paul White Josh By act of donation inter vivos dated May 12 1980 the Gurneys transferred a 68acre tract of land in East Baton Rouge Parish tract B 1 A on a May 1 1980 22 survey map to Ms White In that same act the Gurneys donated an adjacent 22 68 acre tract of land in East Baton Rouge Parish tract B 1B on that same map to Mrs Harvey The map also referenced the adjacent tract B 1 C containing 36 acres that 82 was retained by the Gurneys Later by a purported act of cash sale dated October 12 1987 the 1987 act Ms White seemingly transferred tract B 1A to Mrs Harvey for 000 5 Mrs Gurney died on September 6 1994 A judgment of possession in Succession of Ella Dyer Gurney Nineteenth Judicial District Court docket number 447 62 was signed on September 11 1995 recognizing Mr Gurney as the owner of an undivided onehalf interest in the property belonging to the former community Ownership of the other undivided onehalf interest was vested by that judgment in Mr s Gurney four grandchildren subject to a usufruct in favor of Mr Gurney Afterwards tracts B1B and B1 C were resubdivided as shown on a survey map dated November 7 1995 On November 21 and 22 1995 a document titled Acts of Donation and Act of Cash Sale was executed by Mr Gurney his four Tracts B1 B and B 1 C were resubdivided into tracts indentified as B 1B 1 6 1 B2 B 1 C 1 and B 1 2 C 2 grandchildren Mr Harvey and Mrs Harvey In that act the following occurred 1 Mr Gurney transferred his undivided onehalf interest in tract B1 C to his four grandchildren subject to a usufruct in his favor of a specified portion of the tract 2 Josh sold an undivided one eighth interest in tract B 1 C to the three Harvey children for 32 and 3 Mr and Mrs Harvey donated to their three children an undivided 175 041658 32 percent interest in tract 13 113 less and except tract B 1 B 2 which contained 0 acres 97 Shortly before Mrs Harvey death on June 25 1996 Mr and Mrs Harvey s donated their remaining undivided 67 percent interest in tract B 113 to their 958342 three children less and except tract B 1 13 The three Harvey children then partitioned 2 the property that was owned in indivision by them namely tracts B 1 13 B 1 C and 1 1 B 1 C2 Pursuant to an act of partition dated July 8 1996 Dean became the sole owner of tract B1 B1 Whit became the sole owner of B1 C 1 and Faye became the sole owner of B 1 C2 On October 26 1996 Mr Harvey and his children collectively the Harveys executed a purported act of sale under private signature the 1996 act transferring their interest in tract B 1A back to Ms White for 5 On March 5 1999 the 000 Harveys filed this suit to annul the 1996 act questioning its authenticity and validity Ms White filed a reconventional demand against them seeking to have the 1987 act declared a nullity In her reconventional demand Ms White averred that the recited consideration of 5 was never given by Mrs Harvey in connection with the 1987 000 act and that by agreement the property was to be transferred back to Ms White at a convenient time In the absence of a counterletter the Harveys sought dismissal of Ms s White reconventional demand In an amending and supplemental petition the Harveys alleged that the signatures on the 1996 act were obtained by fraud At the trial of this matter Ms White testified over the Harveys objection as to the circumstances surrounding the 1987 transfer to Mrs Harvey Following a trial of Z The deed reflects that Josh only transferred an undivided one eighth interest in the property therefore based on the evidence in this record Josh still holds an undivided one eighth interest in tract 3 this matter the trial court upheld the 1996 act as a valid and binding sale based on an underlying natural obligation serving as the cause for the 1996 transfer The Harveys appeal contending essentially that the trial court erred in 1 finding that a natural obligation existed as a result of the circumstances surrounding the 1987 act that served as consideration for the 1996 act 2 failing to recognize that Ms White did not have a right to attack the 1987 act and 3 failing to find that the 1996 act was a donation disguised as a sale that failed to meet the requirements for a valid donation Discussion In their suit to annul the Harveys challenged the validity of the 1996 act of cash sale A sale is a contract whereby a person transfers ownership of a thing to another for a price in money LSA C art 2439 The thing the price and the consent of the parties are requirements for the perfection of a sale Id The contract of sale is perfected when one party consents to give a certain thing for a price in money and the other consents to give the price in order to have the thing Benglis Sash Door Co v Leonards 387 So 1171 1172 La 1980 see Lawrence v Terral Seed Inc 35 2d 019 La App 2nd Cir 9 796 So 115 123 writ denied 01 3134 La 2808 01 26 2d 02 1 2d So 341 A sale of an immovable must be made by authentic act or by an act under private signature except as provided by LSAC art 1839 C LSA C art 2440 According to LSAC art 1839 a transfer of immovable property must be made by C authentic act or by act under private signature Nevertheless an oral transfer is valid between the parties when the property has been actually delivered and the transferor recognizes the transfer when interrogated on oath LSAC art 1839 C In the instant case there has been no showing that a valid oral transfer of immovable property to Ms White occurred in 1996 nor was the 1996 act an authentic act since it was not executed before a notary public in the presence of two witnesses M See LSAC art C 1833 1984 Therefore to be a valid sale the 1996 transfer from the Harveys to Ms White was required to be made by act under private signature See LSA C art 2440 An act under private signature is one executed by the parties themselves without the intervention of a public officer such as a notary public Rainey v Entergy Gulf States Inc 09 572 La 3 35 So 215 225 citing Saul Litvinoff The Law of 10 16 3d Obligations 26 12 at 308 in 5 Louisiana Civil Law Treatise 2d ed 2001 An act under private signature need not be written by the parties but must be signed by them LSA C art 1837 The signature of the parties is the only element the law requires to give evidentiary weight to an act privately executed by the parties Rainev 35 So at 3d 225 cin Litvinoff 28 12 at 310 An act under private signature is regarded prima facie as the true and genuine act of a party executing it when his signature has been acknowledged and the act shall be admitted in evidence without further proof LSAC art 1836 C An act under private signature may be acknowledged by a parry to that act by recognizing the signature as his own before a court or before a notary public or other officer authorized to perform that function in the presence of two witnesses Id An act under private signature may be acknowledged also in any other manner authorized by law Id Any deed contract or other instrument under private signature purporting to be attested by two or more witnesses and accompanied by an affidavit of the vendor that the same was signed or executed by him or by an affidavit of one or more such witnesses made at or after the signing and execution of such deed or other instrument and setting forth substantially that the instrument was signed or executed by the party or parties thereto in the presence of the affiant or affiants shall be deemed taken and accepted prima facie and without further proof as being true and genuine and shall be so received and accepted in evidence in the courts of Louisiana without further 3 An authentic act is a writing executed before a notary public or other officer authorized to perform that function in the presence of two witnesses and signed by each party who executed it by each witness and by each notary public before whom it was executed LSA C art 1833 1984 LSAC art 1833 C was amended by 2003 La Acts No 965 1 effective January 1 2005 5 proof LSAR 13 S 3720 Therefore an act under private signature may be acknowledged not only by the party who executed it but also by a witness in whose presence it was executed LSAC art 1836 Revision Comments1984 comment C b By an act under private signature dated October 26 1996 the Harveys purportedly sold tract B1 A to Ms White for 5 This document was seemingly 000 signed by each of the Harveys in the presence of two witnesses namely Mr Gurney and Lela F Dedon On October 29 1996 Mr Gurney executed an Acknowledgement by Subscribing Witness in the presence of a notary and two witnesses On its face the 1996 act presently before the court bears all the earmarks of a deed duly acknowledged under the provisions of LSAC art 1836 and LSA R 13 It was purportedly C S 3720 attested by two witnesses and it was accompanied by the affidavit of one of such witnesses who declared under oath that the instrument was signed by the parties thereto in his presence as well as in the presence of the other subscribing witness Under LSAC art 1836 and LSAR 13 the 1996 act has to be deemed taken C S 3720 and accepted prima facie as being true and genuine and shall be received in evidence without further proof When the law requires a contract to be in written form the contract may not be proved by testimony or by presumption unless the written instrument has been destroyed lost or stolen LSAC art 1832 Testimonial or other evidence may not C be admitted to negate or vary the contents of an authentic act or an act under private signature Nevertheless in the interest of justice that evidence may be admitted to prove such circumstances as a vice of consent or a simulation or to prove that the written act was modified by a subsequent and valid oral agreement LSAC art C 4 Ms White was a named party to this document but she did not sign it The fact that Ms White did not sign as a party to this act does not render the act invalid Notably an act under private signature is valid even though signed by one party alone See LSA C art 1837 Revision Comments1984 comment b s Furthermore a party against whom an act under private signature is asserted must acknowledge his signature or deny that it is his LSA C art 1838 Although the Harveys initially urged that their signatures were forged three of the Harveys conceded at trial that the signatures on the 1996 act were theirs N 1848 Testimonial proof may be used against a writing to show error fraud or duress LSAC art 1848 Revision Comments 1984 comment b C In their amending and supplemental petition the Harveys alleged that they were told that the 1996 act was a mineral lease and that it was signed by them at Mr s Harvey home in the presence of an oil company representative Joseph R Guice and Ms White The Harveys denied that Mr Gurney and Ms Dedon were present when this document was signed If in fact the 1996 act was not executed in the presence of Mr Gurney and Ms Dedon it would not satisfy the requirements of LSA C art 1836 and LSA R S 3720 13 and would not be deemed taken and accepted prima facie and without further proof as being true and genuine However the act could still have effect as an act under private signature See LSAC art 1834 Thus we consider the evidence C on this issue to determine if the 1996 act was made in contravention to LSAC art C 1836 and LSAR 13 and thus was not self proving S 3720 Ms White testified that she had the document drawn up by an attorney She then gave the document to her father Mr Gurney to have it executed by the Harveys Ms White denied being present when they signed the document at her father home s on October 26 1996 On October 29 1996 the day Mr Gurney executed the acknowledgement regarding the 1996 act the Harveys also executed separate mineral leases On November 6 1996 the 1996 act was recorded and Ms White also executed a mineral lease In his deposition Mr Gurney stated that he witnessed his three grandchildren and soninlaw sign the 1996 document at his home He explained that Ms Dedon was a friend of his who was personally present at his home when the signing occurred Mr Harvey had no recollection of the execution of the 1996 act Faye testified that Ms Dedon was not present when the document was signed Although subpoenaed to testify by the Harveys Ms Dedon failed to appear for trial According to the transcript it was noted that a physician with the Stannaco Medical 7 Center faxed a doctor excuse to the trial court relative to Lela F Dedon date of birth s February 19 1920 The trial court read from the doctor sexcuse and stated Ms Dedon has been under care for multiple medical problems for many she is eighty years old and in poor general health It is eight their opinion it will be detrimental to her health to testify in a court years Counsel for the Harveys pointed out that Ms Dedon had been deposed at her home several years earlier Counsel for the Harveys further stated that in her July 7 2005 deposition she recalled that the Harveys signatures were not on the instrument when she signed it and that she was not present in Mr Gurney shome when the instrument was signed by the Harveys Counsel for Ms White seemingly objected to relying on Ms s Dedon deposition testimony without having her appear in court questioning her mental capacity In reviewing the record the trial court discovered that information relevant to Ms Dedon appearance at trial was missing from the record Therefore s this matter was taken under advisement by the trial court while the matter proceeded to trial The trial court oral reasons at the conclusion of the trial on the merits indicate s that it considered Ms Dedon deposition but gave no indication of the weight if any s that was given to her testimony or the testimony of the other witnesses which had a bearing on whether the requirements of LSAC art 1836 and LSA R 13 were C S 3720 satisfied Particularly the trial court reasoned The court has reviewed the deposition of Ms Dedon together with the other exhibits adduced into evidence in the trial hereof as well as post trial memorandum The court is of the opinion and hereby finds that the 1996 private sale was a valid and binding sale because of the underlying natural obligation which operates as the cause of the transfer therefore the property should justly be returned to Ms White This court is unable to determine from these reasons if the trial court found that the 1996 act was self proving Assuming the Harveys allegations are true and Mr Gurney and Ms Dedon did not witness their signing the 1996 act would still be admitted in evidence without further proof because Mr Harvey Dean and Faye acknowledged and recognized their signatures before the court See LSAC art 1836 C FE As previously stated the requirements for the perfection of a sale are the thing the price and the consent of the parties See LSAC art 2439 C Although Mr Harvey Faye and Dean admitted to the genuineness of their signatures on the 1996 act they denied knowing what they signed contending that they intended only to transfer the mineral rights to the property back to Ms White A person who signs a written contract is presumed to know its contents and cannot avoid its obligations by contending he did not read the document or that it was not explained or that he did not understand it barring misrepresentation fraud or violence See Tweedel v Brasseaux 433 So 133 137 38 La 1983 Griffin v Lago Espanol L 002544 2d C La App 1st Cir 02 808 So 833 840 Sonnier v Boudreaux 95 2127 La 15 2d App 1st Cir 05 673 So 713 717 Once the Harveys signed the 1996 act 96 10 2d they became bound by its contents and could not rescind it without a showing of misrepresentation fraud or violence Where a party has pled ignorance of the contents of the writing on the score of not having read it the party pleading error must establish the error by very clear proof See Willis v Semoe 139 La 877 72 So 427 428 1916 The 1996 act recites that the consideration for the sale was 5 cash in 000 hand paid the receipt whereof is hereby acknowledged and good acquittance and discharge therefor given In their petition the Harveys alleged that they never received the price of 5 as recited in the 1996 act 000 In her answer Ms White admitted that the Harveys had not received the stated consideration Furthermore at trial the Harveys testified that they never received any cash from Ms White Their testimony was supported by that of Mr Gurney and Ms White In response to the Harveys allegation regarding consideration Ms White alleged in her answer that the 1996 act was intended by the parties as a means of transferring the property back to defendant for the same consideration that was paid by defendant s sister plaintiffs ancestor in title when defendant transferred the property to her In her reconventional demand Ms White in pertinent part alleged 7 L 10 On October 12 1987 Ms White transferred to Mrs Harvey by Act of Cash Sale passed before Jerry H Bankston the property that is the subject of the suit 11 The Act of Cash Sale recites a consideration of 00 000 5 which sum was never paid nor was it contemplated by the parties that this sum would be paid 12 The Act of Cash Sale dated October 12 1987 was done merely for the convenience of the parties and was to be transferred back to Ms White at a convenient time 13 Said Act of Cash Sale is recorded in the Conveyance Records of the Parish of East Baton Rouge at original 72 bundle 9957 A copy is attached to this petition 14 Ms White is entitled to have the transfer dated October 12 1987 declared null and void as if it had never been enacted In their answer to Ms White reconventional demand the Harveys averred that unless s Ms White can produce a written counterletter to establish that the sale referenced in her reconventional demand is a simulation Ms White is not entitled to the relief she seeks In order to determine if the 1996 act was supported by cause we must examine the obligations if any that flowed from the 1987 act An authentic act is a writing executed before a notary public or other officer authorized to perform that function in the presence of two witnesses and signed by each party who executed it by each witness and by each notary public before whom it was executed LSAC art 1833 1984 The 1987 act seemingly meets these C requirements Although testimonial or other evidence may not be admitted to negate or vary the contents of an authentic act the court is authorized in the interest of justice to accept such evidence to prove such circumstances as a simulation See LSA C art 1848 A contract is a simulation when by mutual agreement it does not 6 See LSA C art 1833 A 10 express the true intent of the parties LSAC art 2025 C If the true intent of the parties is expressed in a separate writing that writing is a counterletter Id Under Article 1848 testimonial or other evidence is admissible to prove an absolute or relative simulation LSA C art 1848 Revision Comments 1984 comment c A simulation is absolute when the parties intend that their contract shall produce no effects between them between the parties That simulation therefore can have no effects LSAC art 2026 A simulation is relative when the parties C intend that their contract shall produce effects between them though different from those recited in their contract LSAC art 2027 When the expression of a cause in C a contractual obligation is untrue the obligation is still effective if a valid cause can be shown LSAC art 1970 C Based on the allegations in her reconventional demand Ms White has alleged that the 1987 act was a simulation Therefore under LSAC art 1848 the court was C authorized in the interest of justice to accept testimonial or other evidence to prove the circumstances surrounding such a simulation for purposes of determining the validity of the 1996 act which is being challenged by the Harveys Ms White explained that she and her then husband were having business problems in the 1980s due to the oil crunch and they were losing a lot of business She had used her separate property as collateral for a business venture and feared losing the property Therefore she transferred tract B1 A to Mrs Harvey in 1987 to protect the property from her then husband and his creditors According to Ms White although the 1987 act was styled as a cash sale no money changed hands In connection with the transfer she and Mrs Harvey verbally agreed that Mrs Harvey would return the tract to her at a later unspecified time Mr Gurney stated that his daughters had explained their agreement to him According to Mr Gurney the property was transferred to prevent Ms White husband from getting it Mr Gurney s understood that the property would be returned to Ms White by Mrs Harvey The Whites were divorced in 1989 11 Ms White testified that she spoke to her sister about putting the property back into her name after she and her husband divorced At that time Mrs Harvey advised Ms White that Josh would be eligible for more grant money if the property was not in her name Ms White testified that she trusted Mrs Harvey and allowed the property to remain in Mrs Harvey name Mrs Harvey died before she was able to put the record s title to tract B 1 A back in Ms White name s Ms White stated that Mr Harvey was not a party to the conversations that she had with her sister about the property transfer Furthermore Mr Harvey testified that he was not informed of the circumstances surrounding the 1987 transfer to Mrs Harvey Although she denied having knowledge of the agreement between her mother and Ms White Faye testified that she knew that Ms White had transferred tract B 1 A to Mrs Harvey for the convenience of the sisters and that Mrs Harvey had not paid Ms White any money in connection with the 1987 transaction Dean explained that he did not know the circumstances surrounding the 1987 transfer to his mother After considering this evidence the trial court apparently believed that Ms White had shown that the 1987 act was a simulation and that pursuant to the intent of the parties thereto Mrs Harvey promised to return the property to Ms White some day in the future resulting in the creation of a natural obligation A natural obligation arises from circumstances in which the law implies a particular moral duty to render a performance LSA C art 1760 A natural obligation is not enforceable by judicial action Nevertheless whatever has been freely performed in compliance with a natural obligation may not be reclaimed LSAC art 1761 A C contract made for the performance of a natural obligation is onerous Id Examples of circumstances giving rise to a natural obligation are 1 when a civil obligation has been extinguished by prescription or discharged in bankruptcy 2 when an obligation has been incurred by a person who although endowed with discernment lacks legal capacity and 3 when the universal successors are not bound by a civil obligation to 8 Notably this case does not involve an attack of the 1987 act by a thirdparty creditor of Ms White on the ground of fraud See LSA C art 2028 12 execute the donations and other dispositions made by a deceased person that are null for want of form LSAC art 1762 C Nowhere in the Louisiana Civil Code is the term natural obligation precisely defined and our courts have construed the listing of examples of such obligations as illustrative and not exclusive Grp v McCormick 94 1282 La App 3rd Cir 10 663 So 480 485 Muse v St Paul Fire 95 18 2d Marine Insurance Company 328 So 698 705 La App 1st Cir 1976 The determination of 2d whether a natural obligation exists therefore depends on the facts of each particular case The requirements that must be present in order for a moral duty to be considered a natural obligation are 1 the moral duty must be felt towards a particular person and not towards all persons in general 2 special circumstances must exist that allow the inference that the person involved feels so strongly about his moral duty that he truly feels he owes a debt 3 the duty can be fulfilled through rendering a performance whose object is of pecuniary value and 4 a recognition of the obligation by the obligor must occur either by performing the obligation or by promising to perform it that is a recognition that brings the natural obligation into existence and makes it a civil obligation Litvinoff 4 2 at 28 Terrell v Nanda 33 La App 242 2nd Cir 5 759 So 1026 1030 Thomas v Brvant 25 La App 2nd Cir 00 10 2d 855 94 22 6 639 So 378 380 2d The intent of the alleged natural obligor is relevant to the determination of whether the alleged natural obligor felt the moral compulsion necessary to transform his moral duty into a natural obligation See Thomas 639 So at 380 Litvinoff 2d 6 2 at 32 Great discretion must be exercised by the courts in determining whether in a given situation a moral duty rises to the level of a natural obligation Thomas 639 2d So at 380 Litvinoff 6 2 at 32 In this case the Harveys denied feeling a moral duty to transfer tract B1 A back to Ms White The following evidence is pertinent to this issue The natural obligor belief in the existence of the moral duty is as important as its reality Litvinoff s 6 2 at 28 13 Ms White explained that in accordance with her verbal agreement with Mrs Harvey and in connection with an inquiry from an oil company about a mineral lease Ms White requested that the Harveys execute the 1996 act that transferred the property back to her At trial Mr Harvey indicated that he and his children thought that Ms White should have the mineral rights and that they intended to transfer only the mineral interests to her Although they denied having the intent to transfer the tract to Ms White in October 1996 a map of the family property prepared in November 1995 in connection with Mr Gurney donation of family property to his four s grandchildren identified Ms White as the owner of tract B1 A No one objected to this fact The map was signed by Mr Gurney Ms White Mrs Harvey Mr Harvey Dean Faye Whit and Josh who were all identified as owners of the property Although Dean denied signing the map he admitted to the genuineness of his signature on that document Mr Gurney continued to pay the property tax on tract B 1A just as he had done following the 1980 donation to his daughters Furthermore we note that tract B A 1 did not form part of the property that was partitioned by the three Harvey children in July 1996 nor was it included in the 1995 and 1996 donations by Mr and Mrs Harvey of their ownership interests in tract B1 B Mr Guice examined the public records to determine ownership of all of the Gurney property The oil company was interested in leasing as much of the Gurney property as possible Mr Guice explained that he contacted the record owners and met with them in an effort to lease the property Ms White Mr Harvey and Faye testified that this meeting occurred on the patio at Mr Harvey home Mr Guice informed the s group that since Ms White was not a record owner a deed was necessary to transfer the property back into her name so that she would have the right to lease the property Mr Guice denied having anything to do with the preparation or execution of the deed However he was present and signed as a subscribing witness when each owner signed a mineral lease in October and November 1996 10 This map was a survey of tracts B 1 B and B1 C and provided for the re subdivision of those tracts into tracts B 1 B1 B 1 B 2 B 1 C 1 and B 1 C 2 14 Ms White stated that she was included in the family meeting with Mr Guice because the family still considered her to be the owner of tract B1 A even though the tract was not in her name Mr Guice testified that he could not pay Ms White for a mineral lease until she had the right to lease the property According to Ms White the Harveys agreed to sign tract B 1A back over to her so that they could proceed with the execution of the mineral leases for all of the property The Harveys denied knowing the terms of Mrs Harvey agreement with Ms s White Even though the 1996 act was executed shortly after Mrs Harvey sdeath they argue that they felt no moral duty to return tract B1 A to Ms White Although Faye denied having knowledge of the verbal agreement between her mother and her aunt or feeling obligated to return the tract to Ms White Faye admitted that she knew that Ms White transferred the property in question to Mrs Harvey for the convenience of the sisters and that no money had changed hands Moreover the Harveys suit to annul the 1996 act of sale was not filed until March 1999 after Ms White evidenced her intent to sell tract B1 A because Mr Harvey Dean and Faye opposed the development of tract B 1 A and wanted it to remain in the family in an undeveloped state Faye admitted that there were no problems until the Harveys found out that the property was for sale Notably no evidence was offered relative to Mrs Harvey succession s Therefore the record does not reflect whether her succession was opened and if so whether tract B1 A was listed as an asset of her estate Presumably if Mr Harvey and his children believed that Mrs Harvey was the owner of tract B1 A they would have been interested in obtaining a judgment of possession recognizing their ownership interests of it following her death The absence from the record of a judgment of possession recognizing the Harveys as the owners of tract B1 A also casts doubt on the Harveys claim that they felt no moral duty to return tract B 1 A to Ms White In finding that a natural obligation flowing from the 1987 act served as the cause for the 1996 act the trial court obviously did not find the testimony of Mr Harvey 15 Faye and Dean to be credible a finding which is entitled to great weight and should not be disturbed on appeal absent manifest error See Rosell v ESCO 549 So 840 2d 84445 La 1989 Nothing in the designated record contradicts this finding of the trial court Considering the evidence in the record we are unable to find that the trial court manifestly or legally erred in finding that the 1987 act did not express the true intent of Ms White and Mrs Harvey thus resulting in a simulation Furthermore we find no abuse of discretion in the trial court finding that in connection with the 1987 s act Mrs Harvey promised to transfer the property back to her sister at a later date giving rise to a natural obligation on the part of Mrs Harvey Moreover we cannot say that the trial court given its determination of credibility manifestly erred in finding that Mrs Harvey successors in title felt a moral duty to return tract B 1 A to their aunt s when they executed the act under private signature in 1996 Therefore although a natural obligation is not enforceable by judicial action whatever has been freely performed in compliance with a natural obligation may not be reclaimed See LSAC C art 1761 Decree For these reasons the judgment of the trial court is affirmed Costs of this appeal are assessed to Ronald R Harvey Gurney Dean Harvey and Faye Harvey McGee AFFIRMED Where documents or objective evidence so contradict the witness story or the story itself is so s internally inconsistent or implausible on its face that a reasonable factfinder would not credit the s witness story the court of appeal may well find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination Rosell 549 So at 84445 But where such factors 2d are not present and a factfinder finding is based on its decision to credit the testimony of one of two or s more witnesses that finding can virtually never be manifestly erroneous or clearly wrong Id at 845 16
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