
    No. 11,799.
    Jerisan Broussard vs. Abel West et als.
    The title of a purchaser in good faith from the vendee in a sale with a power of redemption, after the sale has become absolute by reason of the non exercise of the right of redemption, is secure against an attack from the original vendor or his creditors, on the ground that the “ sale with redemption ” was really a contract for security which did not shift the ownership. The purchaser is not affected by secret equities, unknown to him, or not disclosed by the record.
    Though the knowledge which the purchaser of a piece of property has of the pendency at the time of his purchase of a revocatory action against his vendor to have his title set aside for fraud may affect him should that action terminate in favor of the plaintiff, but it docs not, if it terminate in favor of defendant, charge him with general notice that the title is subject to attack on other grounds.
    APPEAL from the Twelfth Judicial District Courb for the Parish of Calcasieu. Sehwing, J., ad hoe.
    
      Edward L. Wells, for Plaintiff, Appellant:
    A creditor may bring petitory action -to recover his debtor’s property alienated to his prejudice, and for which the debtor fails or refuses to sue. 30 An. 733; 33 An. 898.
    The • prescription to this action is ten years and not one year. Idem.
    
    No one can convey a better title than he himself has. 4 R. 118; 2 An. 143; 4'An. 52, 104; 5 An. 10, 66; Hennen’s Digest, 1835, No. 9.
    Redeemable sales unaccompanied by delivery of which the consideration is inadequate, will be treated by the court, in the absence of proof to the contrary, as contracts by which the property nominally sold stands as security. 5 An. 99; 16 An. 11; 15 An. 386; 23 An. 665, 658; 38 An. 891, 154; 40 An. 307, 323; 2 An. 480; 42 An. 395; 44 An. 925; 32 An. 94.
    Such a sale does not have the effect of transferring the title or own - ership. Idem.
    
    Third persons may contradict a writing by parol. Hennen, 532, Nos. 1, 2, 3, 4, 5, 6, 7, et seq.
    
    
      Arsene P. Pujo for Defendants, West and David Bloch, Appellees:
    ESTOPPEL.
    The surviving widow and heirs joining in an attack upon the validity of a sale made by the husband and father, are estopped by the judicial admissions made in a former suit (wherein the verity of the same sale was at issue), that said sale was bona fide and for the consideration therein stated. Maples vs. Nutty, 12 An. 759.
    They have no standing in court unless they show affirmatively by allegation and proof that there would be something coming to them after the payment of the debts of the succession. 15 An. 140, McQueen vs. Sandel.
    Plaintiff, claiming to have resorted to a suit in Zoco debitur, is restricted to the proof which would have been exacted from his debtor. It can have no greater rights. 33 An. 898..
    Plaintiff having failed to allege error, fraud or simulation will not be permitted to show title to real estate by parol. O. O. 2255; 35 An. 1052, 505.
    PRESCRIPTION.
    The character of an action must be determined from the nature of the relief prayed for. In a suit attacking the validity of a sale a prayer for its avoidance, annullment and recision characterizes it as a revocatory action. Plaintiff’s action was forfeited by delay, having failed to bring his suit for revocation within the time required by law. 31 An. 592; 41 An. 102.
    MERITS.
    A debtor may validly sell with right of redemption, within a limited time to secure a creditor. The sale becomes absolute after the lapse of time agreed. 32 An. 96, 784.
    Failure to redeem within specified time ipso facto vests absolute title in vendee. 35 An. 855; 38 An. 271; 36 An. 404.
    Before courts are authorized to set aside a vente a remeré it must appear: (1) That the price was vile and totally inadequate. (2) That the parties intended the act as a mortgage or security for debt. (3) That delivery was never made to and possession never vested in the vendee. 40 An. 307; 44 An. 925.
    An act passed in Louisiana which appears upon its face to be a vente a remeré can not be shown as regards third persons to be a mortgage. 34 An. 797.
    Positive testimony of witnesses whose character and credibility has not been impeached can not be disregarded for mere suspicions. Especially is this true when the witnesses reside in the vicinity of the judge who is peculiarly competent and qualified to properly appreciate the value of their statements. 43 An. 61, 855.
    
      McDonald & Overton, for the Defendant, Solomon Bloch, Appellee :
    Redeemable sales, unaccompanied by delivery, of which due consideration is inadequate, will be treated by the court, in the absence of proof to the contrary, as contracts by which the property nominally sold stands as security. 5 An. 99; 16 An. 11; 15 An. 386; 23 An. 665-668; 38 An. 891, 154; 40 An. 307, 324; 2 An. 480; 42 An. 395; 44 An. 925; 32 An. 94.
    A petitory action corresponds to ejectment. Am. and Eng. Ency., Vol. 6, p. 226, note 1; Gilmer vs. Poindexter, U. S. How. 360. ‘ Inasmuch as the claim seems to be founded on the right of possession, the party seeking a recovery must show himself entitled to such right generally, at the time of the commencement of the suit and of the trial, or at the time of demise laid in the declaration.
    “ The question at issue is the legal right to the possession, as be- ■ tween the parties, andnot the question of abstract title.” Am. and Eng. Ency. of Law, Yol. 6, p. 228.
    “The fictitious proceedings in the action of ejectment are based upon the principle that, as against the one entitled to possession, the actual occupier or tenant in possession of the premises is wrong-doer, and this must exist as a fact at the time of the commencement of the action, or no recovery can be had.” Am. and Eng. Ency., Vol. 6, p. 229.
    “In some cases the defendant in a petitory action is permitted to assail plaintiff’s title as a consequence of the rule that the latter must recover on the strength of his title.” Cross on Pleadings, under act of nullity, Chap. 15, p. 227, Sec. 279.
    If the defendant, independent of the contest of plaintiff’s title, presents a title of his own, and sets it up as his muniment of title, and relies thereon, then, in that event, only can the plaintiff attack defendant’s title. 33 An. 438.
    “ Plaintiff in petitory action must be absolute owner of property.’ Oaze vs. Robertson, 14 An. 220.
    The Aetio Pauliana of the Roman law, which is our revocatory action, is to set aside contracts which have a real existence, but which the law will not permit to impede the creditor in recovering his debt. 29 An. 6 (bottom of page).
    Argued and submitted, May 11, 1895.
    Opinion handed down, May 20 1895.
    Rehearing refused, June 3, 1895.
    Plaintiff alleges that he holds a judgment against one John Miller for five hundred and forty-four dollars, with legal interest from 24th March, 1884. That he is unable to execute the same, because his debtor during his lifetime, on August 25, 1885, by an ostensible contract of sale, with the right of redemption in twelve months, ostensibly sold and conveyed to David and Solomon Bloch all of his property, consisting of one hundred and sixty acres of land in Calcasieu parish, with the buildings and improvements thereon, and the said David and Solomon Bloch on October 13, 1886, ostensibly sold the same to one Abel West, such title as they acquired. That West bought said property while a suit was pending before the District Court for Calcasieu for the revocation of the title to said Blochs, and before the decision of said revocatory action, which had been brought by creditors of Miller against the Blochs and Miller. That on the trial of said suit it was shown that Miller never intended to sell, nor the Blochs to buy said property. That while it was recited in the act of sale that eight hundred dollars had been paid in cash as the consideration of said sale, in truth the consideration was the giving by the said Blochs to Miller of their promissory note, of even date with said sale, payable twelve months after said date, without interest, which said note was by Miller discounted, and with the proceeds he paid to the Blochs the sum of three hundred and forty-three dollars in settlement of an account they had against him. That the pretended act of sale was intended by both parties to secure the Blochs from any loss on account of said note, and for the purpose of collecting the amount due them upon said account. That the pretended price of said ostensible sale was grossly inadequate to the real value of said property at the time of the passing of said sale; the total amount realized by Miller from said pretended sale was less than six hundred dollars, and the property was worth at least atthat time, and still, twenty-five hundred dollars.
    That said pretended sale was an innominate contract which gave to the Blochs the right of enforcing the same in a proper proceeding but did not divest the title of Miller in then' favor. That having acquired no title by said contract, they could not transfer one to another persoa. That the title of West being derived from those who had no title is inoperative and void. That Miller died several years ago, leaving a widow and six children, whom petitioner names, who all reside in Texas, except George Miller, who is a resident of Calcasieu. That Miller left no other property at his death than the property pretended to have been sold. That plaintiff, as a creditor, of Miller and of ¿his succession, is entitled to a petitory action to bring back said property into the mass of Miller’s assets, to the end that it may be subjected to his mortgage debt; to that end that said pretended act of sale should be declared by the court to be a contract for security, and nothing else, and that the title by the Blochs to West, is null, void and of no effect as a title.
    
      Abel West, one of the defendants, pleaded the prescription of one year in bar of plaintiff’s demand; that he purchased the property in good faith and with full warranty of title from David and Solomon Bloch for the price and sum of fifteen hundred cash. That immediately after his purchase, he moved upon it, and has resided there ever since. He especially denied that the sale from the Blochs to him was simulated or fraudulent, but affirmed its integrity in every respect; that he had paid all taxes due on the property as the same became exigible from and including the year 188V, up to and including the year 1894; that, in addition to this, he had built fences around the land, and had improved and bettered the property, at a cost) to him of not less than one hundred and fifty dollars; that he has completed and painted the house, at a cost of at least six hundred dollars; that he has planted orange as well as other fruit trees, which are now bearing, for all of which he is entitled to recover as a purchaser in good faith; that, at the time he purchased the property it was not worth more than eight hundred dollars, but desiring to reside near his daughter, he was induced to pay more than its real value to gratify his whim, and he specially denied that at the time of his purchase it was worth twenty-five hundred dollars. That at the time he purchased the property, there were no liens nor mortgages affecting the same in favor of plaintiff, nor any suit by him questioning the ownership of the property, nor the legality of the sale from bidder to his authors.
    David and Solomon Bloch, defendants’ vendors, were called in warranty. Both pleaded the prescription of one year in bar of plaintiff’s demand, and both, under reservation of this exception, answered, denying the allegations of plaintiff’s petition, and asserting and maintaining the reality of the sale and validity from Miller to themselves, and their own sale to West, and averring that all parties were in good faith. Solomon Block asked and was permitted to call David Block in warranty, upon the ground that in the settlement of affairs between himself and David, the latter had released him from all obligations of the kind described in their act of settlement, which he contended would cover the claims of West set up in this case. He asked judgment against David Bloch in the event of plaintiff’s obtaining judgment, setting the two sales aside.
    David Bloch, in answer to this call, denied that Solomon Bloch had been released from liability under West’s call in warranty, and prayed that he be adjudged to pay one-half of whatever amount West might be held entitled to recover.
    The widow and heirs of John Miller answered through counsel under reservation of the benefit of inventory, and disclaiming any liability for the debts of the husband and father, and joining plaintiff in his attack upon the title.
    Defendant subsequently pleaded, in bar of plaintiff’s right to recover, that he is estopped from asserting any other right than could have been urged by his debtor, Miller, and that the heirs and widow of Miller are also estopped by reason of the judicial admission made by him in his answer filed in the case of Turner & Oates vs. John A. Miller et al.
    
    The District Court rendered judgment, rejecting plaintiff’s demand, and he appealed.
   The opinion of the court was delivered by

Nicholls, C. J.

The evidence shows that on the 25th day of August, 1885, John A. Miller sold the property in litigation herein to David and Solomon Bloch for eight hundred dollars, with a power of redemption in the vendor within twelve months. The act was duly recorded. Miller remained in possession during the year allowed him to redeem, paying rent as a tenant. At the end of that time he vacated the premises, and David and Solomon Bloch, on the 13th day of October, 1886, sold the property for one thousand five hundred dollars cash to Abel West. This sale was also duly recorded. In the interval between the purchase by the Blochs and their sale to West, a revocatory action was instituted by Turner & Gates against Miller and the two Blochs to have the sale set aside as fraudulent, but the plaintiffs were defeated in the action, and the sale maintained. They seem to have renewed their attack through an hypothecary action directed against West, grounded upon the fact that before he bought they had recorded a judgment which they had obtained against Miller, and upon a contention that the contract between him and the Blochs was not one of sale or transfer of ownership, but simply one of suretyship, which, leaving the title still in Miller, the property became affected by their judicial mortgage in the nominal ownership of ihe Blochs.

The proceedings in that case are not before us, but are referred to by plaintiff’s counsel, and it would appear that Turner & Oates were again unsuccessful in their suit.

The present action was brought by Broussard, in January, 1895. A very large portion of the transcript is taken up with testimony as to the value of this property at the time of the contract between Miller and David and Solomon Bloch. It is obvious, from reading the prayer of plaintiff’s petition, that he is not seeking to have the contract between those parties set aside as a sale on account of lesion, or on account of fraud, but to have the act of the 25th of August, 1885, purporting to be an act of sale with power of redemption, declared to be, in fact, an act of mortgage. The prayer is “ that the pretended contract of sale be declared to be a quasi .mortgage or a pignorative contract not divesting the title of Miller or his estate, and that said sale by David and Solomon Bloch be declared inoperative, null and void, the property restored to the possession and ownership of the estate of Miller.”

The prayer as against West is based upon the theory that when he bought from the Blochs, the property to his knowldge did not belong to them, but to Miller.

So far from conceding that the contract evidences a sale, and directing his attack against it as such, the whole theory of plaintiff’3 case is that it is not a sale, but that Miller’s title has never been divested at all, and that the property has been all the time the pledge of his creditors. The testimony we have referred to, was an attempt, we presume, by plaintiff to bring his case within the line of decisions cited by him, which have declared that redeemable sales, unaccompanied by delivery, of which the consideration is inadequate, will be treated by the courts, in the absence of proof to the contrary, as contracts by which the property nominally sold stands as a security.” Baker vs. Smith, 44 An. 929; Watson vs. James, 15 An. 386; Calderwood vs. Calderwood, 23 An. 658; Groves vs. Steel, 2 An. 480; Payne vs. Hubbard, 42 An. 395; Wang & Cottam vs. Finnerty, 32 An. 94.

The contract in question stood upon the public records as a sale with a power of redemption, and the property had, after the period of redemption, and prior to the institution of this suit, passed from the parties who appear in the act as vendees, into the ownership and possession of a third person, who has paid, as shown by the testimony, a large price for it in cash. Whatever may be the difference of opinion as to the value of the land at the time of the contract between Miller and the Blochs, we think the latter could, beyond question, have maintained it, as a valid contract of sale, from any attack made upon it, either by Miller or his creditors, on the ground of lesion. There was nothing on the face of the deed which would have placed West on inquiry. Under such conditions he was authorized to deal with the Blochs as the owners of the land, unaffected by any secret, unknown equities between them and Miller. It would be too late now for the plaintiff, as a creditor, to attack the act for fraud, even if he could have done so against an innocent third person, who had dealt on the faith of declarations made by the vendor in an authenic act of sale, placed upon the public records, and matters have gone too far for the application of the theory of plaintiff’s case to this property (assuming it to have been justified by the facts) in the hands of West, unless he could bring home directly to him knowledge-of the exact situation. Plaintiff has attempted to do this, but we think unsuccessfully. Assuming that West had knowledge when he bought the property of the existence of a pending revocatory action for fraud between Turner & Oates, Miller and David and Solomon Bloch, the effect of such knowledge was done away with the moment that judgment was rendered in that case in defendant’s favor. In the dec ee West would have found justification for having dealt with the parties when he did, in so far as that particular kind of attack was concerned, and the existence of the suit would not have conveyed to him notice of the possibility of vices in the apparent title of the Blochs of a diametrically opposite character, for the first attack admitted the reality of the sale, but attacked it for fraud, while the second would deny the sale and attempt to hold the property as never having gone out of the ownership of Miller. The necessities of the case do not require us to make any declaration as to what was really the character of the act between Miller and David and Solomon Bloch, but we think it proper to say that, in our opinion, it was precisely what it purported to be, a sale with power of redemption.

John A. Miller himself, in his answer in the revocatory action brought by Turner & Oates to set aside his sale to David and Solomon Bloch, averred that he had sold the land to them on the 25th August, 1885; that the sale was for the consideration named in the deed, which was actually paid; that the whole transaction was in good faith; that the possession passed with the deed, and that he remained on the place for some time after the act, but as the tenant of Bloch & Bro., to whom he was paying rent.

If the statement of George Miller, one of plaintiff’s witnesses, was to be taken as showing the true facts of the case, plaintiff’s position would not be bettered, for according to that witness the act was passed as a mandate to Block & Bro. to sell, coupled with a promise on their part, that after a sale should have been effected they would, after reimoursement of the amount due to themselves, pay over to Miller the surplus. He says that after the sale to West, he, under directions from his father, John Miller, was sent to collect the surplus arising from West’s purchase, bub was told by the Blochs that the price had been exhausted by the indebtedness due them by Miller. West’s purchase was recognized; a money liability over from the Blochs to him was all that was claimed by Miller. This secret understanding (if it existed), inconsistent with, the facts shown by the public records, did not effect West, a purchaser in good faith.

We think the judgment appealed from is correct, and it' is hereby affirmed.  