BADON vs. BADON, 6 La. 255

Mathews, L, delivered the opinion of the court. In this case- the’ widow of Raymond Badon, cfaims certain Sums' of money, which she alleges Were paid by her husband, to the use and for the benefit of the defendant. She sues as surviving partner of matrimonial acquets and gains', and as .heir to an only child, product of the marriage, who died1 since the decease of his father- The plaintiff obtained judgment in the court below, from which the defendant appealed. The evidence of the case establishes the capacities of the petitioner, as partner in the community and heir to her child.

The claim, according to the allegations of the petition, arises out of a fraudulent use of the funds' of the deceased' husband by the defendant, in the purchase of certain lots of ground in the faubourg St.

Mary, which, although in truth and reality were purchased by Raymond Badon, his brother Noel, the defendant, contrived by unfair means to obtain the title in his own name, and used in payment of the price money belonging to his brother to the amount of nine hundred and forty dollars, and suffered the latter to expend large sums in buildings and improvements of said lots, under pretext that the title should he conveyed to him, &c. The testimony, as it appears on the record, fully supports the judgment of the District Court. The Only question in the case, is, whether it was properly admitted.

It was excepted to on the part of the defendant', as tending to prove facts contrary to the written evidence of title, which shows the property in question to belong to the defendant, It is true that many of the circumstances stated by the witnesses, are in opposition to the act of sale by which the defendant is shown to be the purchaser and consequently wa] owner.

But it must be recollected that he is charged & with fraud or unfaithfulness to the interest of his brother -in the transaction; a violation of the trust and confidence which been placed in him, and this want of good faith, could probably be established by no other means except testimonial proof. The testimony was not received to invalidate theS written act, and does not appear to have been used in th-e discussion of the cause for that purpose.

The facts detailed by the witnesses, in contradiction to the written title of th;;s defendant, are merely inductive to the main facts req aired to be proven, viz. the use made by Noel Badon of the funds of his brother Raymond, in making the purchase and allowing or inducing the latter to build on and improve the property as if it were his own, or under pretext that the title would be conveyed to him in due time. Under these circumstances, we are of opinion that the court below did not err in receiving the testimony. }iPadrais0s“we0nin writteaniot\?nstraS’ whíc!ipram to°theTmdnUfeóts proved.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed with costs.