
    (37 South. 861.)
    No. 15,245.
    Succession of DARTON.
    
    (Jan. 4, 1905.)
    PRESCRIPTION — NOTE — PAYMENT — CONSTRUCTION OP CONTRACT.
    1. Where the refusal to purchase or sell a tract of land is given in consideration of a loan for which a note is executed, with the agreement that the right thus • accorded is to terminate upon payment of the note, held, that the agreement of the parties is the law of the case, and that under the agreement the prescription of the note was not its payment, and that, moreover, the agreement, embodying, as it did, a species of pledge, operated as a constant interruption of prescription.
    (Syllabus by the Court.)
    In the matter of the succession of M. W. Darton. Rule of Henry Willet against the succession to show cause why inscription of an agreement should not he erased. From an order granting the rule, affirmed by the Court of Appeal, Edgar M. Cahn and Daniel B. Darton, administrator, apply for certiorari or writ of review.
    Reversed. Rule dismissed.
    Edgar Mayer Cahn, Henry Ckiapella, Sear-gent Smith Prentiss, and Seargent S. Prentiss, Jr., for applicants. W. J. & P. F. Hennessey, for respondent Peter M. Willet. Dinkelspiel & Hart, for respondents Joseph Barry and register of conveyances for the parish of Orleans.
    
      
       Rehearing denied January 30, 1905.
    
   PROVOSTY, J.

Henry Willet and M. W. Darton entered into an agreement by which Darton advanced to Willet $500, and Willet, in consideration of the loan, executed his note for said amount, payable one year after date, in favor of Darton, and gave him the refusal to purchase or sell a certain tract of land fully described in the instrument witnessing the agreement. The agreement provided, as follows:

“The time for the refusal to purchase or sell said afore-described property as aforesaid is to-extend to and terminate at the time of payment of said note of five hundred dollars and no further.”

The agreement was recorded in the office of the register of conveyances, and operated as an incumbrance upon the property mentioned. Thereafter the United States government expropriated this land, and, because of this incumbrance, refused to pay the price of expropriation to the parties, but deposited it in court.

The present proceeding is a rule taken by Willet against the succession of Darton — the latter having in the meantime died — to show cause why the inscription of the above agreement should not be erased from the books of the register of conveyances; more than five years having elapsed since the execution of said note, and same being prescribed, and said prescription being equivalent to payment, and consequently having put an end: to the agreement, just as actual payment would have done.

The trial court adopted that, view, and so did the Court of Appeal, and the matter is-now before this court on writ of review.

The contract of the parties is the law of the case. That contract was that the agreement should continue in full force until the note was paid, and it is conceded that the note has never been paid. Besides, the agreement stood in the hands of Darton as a security or sort of pledge for the payment of the note, and, as such, operated a constant interruption of the prescription. Civ. Code, art. 3551; Montgomery v. Levistones, 8 Rob. 145; Wilson v. Bannen, 1 Rob. 557.

The judgments of the Court of Appeal and of the district court are set aside, and the rule of plaintiff is dismissed, at his costs.  