
    No. 10,539.
    J. C. Johnson vs. T. J. Flanner et al., and The Same vs. The Same, Consolidated.
    Oral testimony, in the absence oí charges oí fraud, error or violence, is inadmissible between the parties to a sale of real estate, to show the simulation o£ the transaction. None but documentary proof is legitimate in such a case.
    A party is concluded by his judicial declarations. After asserting claims as a creditor for the price of property sold, a vendor, or any one under him, is estopped from denying the character and reality which he has attached to the transaction. He can not be permitted to play fast and loose.
    PPEAL from the Eleventh District Court for the Parish of Natchitoches. Pierson, J.
    
    
      
      Chaplin, Brazeale & Chaplin for Plaintiff and Appellant:
    A party to an authentic act will not be permitted to establish its simulation by parol, nor to contradict the act. Thenruer vs. 'Wiesinburger, 10 An. 125.
    As between parties and their heirs (other than forced heirs of the vendor) the only admissible evidence of the simulation of a formal written contract is a counter letter. Hebert vs. Lege, 29 An. 511, 512.
    The retention of possession by the vendor (upon which the District Judge bases his decision) is a badge of simulation so far as “respects third persons,” and, as against such third persons, the parties must produce proof that they were acting in good faith, and establish the reality of the sale. O. O. 2480. But, we repeat, that as between the parties themselves and their legal representatives the act makes full proof, and its reality can not be disputed by parol. 29 An. 511; 4 La. 167; 8 An. 154; 4 An. 487; 9 La. 566; 3 R. 457.
    This rule is applicable to private acts as well as to authentic deeds. Anderson vs. Benham,40An. 336.
    The Code is express, that parol evidence shall not bo admitted against or beyond what is contained in the acts, nor on what may have been said before at the time of making them, or since. R. O. O. 2276, 2242, 2244, 2238.
    The rule of exclusion is consecrated by law and jurisprudence that, as between the parties to a written act, the only admissible evidence to prove simulation is a counter letter. Oarey vs. Richardson, 35 An. 505.
    Conversations or understandings anterior to the date of the instruments attacked are presumed to be included in it. Ibid.
    The unbending jurisprudence of this court does not allow a parly to vary or destroy his own voluntary declarations or written agreements by any thing short of written evidence. Ibid.
    The rule not only applies to immovables, but also such as concern movables. Ibid. Affirming 12 An. 740; 7 R. 96; 5 R. 111;2L. 48; 4 An. 441; 5 R. 327; 12 An. 857; 16 An. 150.
    Judicial records can not be impeached or contradicted by verbal evidence. 82 An. 974; 3 An. 631; 27 An. 401.
    A party to a suit is not permitted to judicially allege a state of facts so contrary to, and inconsistent with, those set up in a former suit between the same parties, that if the allegations in the one suit be true, those in the other must necessarily be false. 37 An. 107; 31 An. 158; 33 An. 1198; 35 An. 744.
    The law holds parties to their allegations of record, and does not permit them to falsify what they have solemnly declared to be the fact, etc. 40 An. 186
    Plaintiff can not proceed at the same time via ordinaria and via executiva attempt it the latter wiil be dismissed at his cost. 3 N. S. 494, 655; 8 H. S
    A creditor changes the proceedings via executiva to those via ordinoA'ia when ha prays for judgment against his debtor who has enjoined * * *
    Judgment is to be given as in an ordinary suit affecting the debtor’s property with a general mortgage. Nor can he object, both being before the court and issue joined between them, to want of service of citation and petition. 16 La. 100; 19 L. 372; 3 An. 150; 32 An. 1285; vide Loque’s Digest, p. 274; Yerbo executory process.
    Damages are recoverable for an illegal and tortious seizure. 17 An. 20; 8 La. 33.
    Where the notarial act evidencing the contract, read and signed by the complainant, discloses fully and’truthfully its nature] and object with all its substantial qualities, the party can not set up error on these points. 37 An. 553.
    The proof of error, to have effect against the recitals of a notarial act, must be clear, cogent and convincing. 31 An. 695.
    
      The pleas ol error of fact, of fraud and of want of consideration, will not avail to> defeat the enforcement of a written and honorable obligation, unless they are clearly proved. 31 An. 695.
    
      Scarborough & Carver and Jack & Dismukes for Defendant and Appellant :
    “ If the cause expressed in the consideration should be one that does not exist, yet the contract can not be invalidated if the party can show.the existence of a true and sufficient consideration.” C. 0., Art. 1900; 30 An. 966; 33 A.
    Inadequacy of price and retention of possession by the vendor indicate a pignorative contract tinder guise of a sale, and its true character and object may be shown by parol. Howe vs. Powell et al., 40 An. 307.
    It is competent to show error in an act of mortgage by parol. 36 An. 549.
   The opinion of the court was delivered by

Bermudez, O. J.

The object of these suits is an adjustment of the' respective liabilities of the parties inter se.

Flanner having issued two writs, one of execution, another of seizure and sale, against Johnson, the latter enjoined them, claiming to be entitled to credits which were not allowed him. Flanner' answered, that the transactions "relied on by Johnson to set up his. claims, were not real, but simulated, concluding, in a reconventionah demand, with a prayer for a judgment against Johnson, for the whole amount due him.

The differences of the litigants were most extensively inquired into, before a jury, who returned a verdict, crediting Johnson with certain sums, and liquidating Flanner’s claims to the difference, $4520 with interest.

From the judgment rendered on the verdict, Flanner appealed, and Johnson, answering, prays for increased credits.

It appears that in 1887 Flanner sold certain lands to Johnson for-$9290.72, which were settled in four notes payable at one, two, three and four years.

On the maturity of the first note, Flanner brought suit, via ordinaria, against Johnson, alleging the nature of the transaction, the sale, in consequence of which the notes had been issued.

Johnson came forward, confessed judgment and paid $1250, on account, obtaining indulgence.

Subsequently, Flanner, remainingunpaid, issued execution, levying; upon the property sold and other property.

Johnson enjoined on the grounds, that he had not been credited with the previous payment of $1250, and that Planner had no right to exact payment without having paid the indebtedness assumed by him in the act of sale to him and his vendor, which amounted to $7355.81, part of which was represented by vendor’s notes figuring $3500, which had been placed in his possession by Johnson, who owns them, to secure a loan of $1800, whifch had been paid back, the notes not being, however, returned, etc.

Planner answered the petition for an injunction, admitting the proceeding in which the confession was made, the payment of the $1250, and the issuance of the Ji. fa. and the seizure; but charges that he is not liable for the indebtedness assumed by him in the act of his vendor, Sers, which is a simulation, and that the consideration of the transaction was a different one. He further avers, that the Sers’ notes have no real existence, and were surrendered to him because of that fact, and not to secure a loan; that it had been intended to insert a clause in the act, exonerating him from all liability, but that, through error and oversight, it was not done. He further sets up his claims against Johnson on the notes by complaints of damages sustained in consequence of the injunction. He concludes by asking that the injunction be dissolved with damages, that he be declared not liable for the assumptions, and that the property seized be ordered to be sold for the whole debt, for cash, to cover the part due, and on terms of credit to correspond with the parts not ■due.

Before those issues had come to tr(fttl, Planner brought executory proceeding on the second maturing note of Johnson, with a credit of $200, averring the suit on the first note, the sale, and praying for the seizure and sale of the property, for cash, sufficient to pay the note sued on of March 9, 1889, attorneys’ fees, etc.

On the proper order, the writ issued, but was enjoined by Johnson on grounds substantially similar to those set forth in his petition for an injunction arresting the fi. fa.

Planner answered mainly as he did to the first injunction in avoidance of the responsibilities resulting from his assumptions.

The cases were consolidated and so tried.

The plaintiff offered documentary evidence in support of his averments to show that he was entitled to the credits claimed and that Planner had bound himself to pay debts of his vendor, and that he should be held to do so previous to exacting payment of the notes sued on.

The defendant offered oral testimony to show the simulation alleged by him, and consequently his non-liability under the assumptions. The court allowed the testimony over plaintiff’s objections, which were reserved by bills and which were that parol testimony, between the pai’ties, is not admissible, but that a counter letter was the only legitimate proof, and even then, that by his judicial declarations of the reality of the transactions in which Johnson had issued the notes, Flanner was estopped from all contradiction of them.

It needs no discussion or reference to authorities to show that it-was error to have heard the oral testimony.

The case is one which is between the parties, and in which none of' the averments has been made which would have opened the door-for such proof.

Besides, the judicial declarations which Flanner has made in the-two suits and the exercise of the rights which he asserted therein,, and which affirm and reaffirm the sale from him to Johnson as a reality, effectually estop him from denying its seriousness. He cannot be permitted to play fast and loose.

There is no evidence showing that a clause had been intended to • be inserted in the act for his relief, and that by error and oversight-it was omitted.

It may not be out of place to say that during the trial, feeling that written evidence was necessary in such a case, he averred the existence of a counter letter, in a supplemental answer, but that he afterward abandoned the claim 'to such proof.

It appears that Flanner assumed the four notes due by his vendorSers for $3500; that these notes are the property of Johnson, and are therefore due by Flanner, and that, by as much, they offset Planner’s claims against Johnson.

The manner in which those notes came to be in Flanner’s posséssion is differently stated by Johnson and Flanner, but after hearing-them and the other proof in the record on the subject, the jury and the judge rightly preferred Johnson’s statement.

Flanner ought to have credited Johnson with the $1250 paid by him in the suit on the first note and Johnson is entitled to a credit-of $200 on the second note sued on in the executory proceeding-Johnson is further entitled to offset the claim of Flanner by the-notes of Sers, which Planner owes by assumption and which are Johnson’s property, amounting to $3500.

The verdict of the jury and the judgment of the court on it have done justice, as far as they go, but Johnson is entitled to a further reduction of $200, which puts down his indebtedness to Planner at $4340.73.

It is therefore ordered and decreed that the verdict of the jury and the judgment thereon be amended so as to entitle Johnson to a reduction of Planner’s claim against him to $4340.73, instead of $4540.73, and that, thus amended, said judgment be affirmed; the costs of appeal to be paid by Fl&nner.  