
    No. 10,126.
    Charles L. Howe, Executor, vs. Isaac Austin et als.
    In a contract- relating to real estate situated in this State between parties residing in a State where the common law prevails, it is stipulated substantially that one of the parties sells to the other the immovable for a designated price, and, further, that the said sum mentioned as the price was a debt owing to the alleged purchaser by tho vendor, and that should said debt be paid by a time stated the act or conveyance .should he void. The act was termed by the parties ‘a deed ot* mortgage,” and was recorded in the mortgage record book of the parish whore the property was situated. Held, that tho instrument was a common law mortgage and did not have the effect of passing tit-le to tho property.
    APPEAL from the Seventeenth District Court, for the Parish of East Baton Bouge. JBurgess, J.
    
      L. 2). Beale and II O. Miller for Plaintiff and Appellant:
    The sale of property by the debtor to his creditor for eleven hundred dollars, the act stipulating that if the. debtor pays bis promissory note .for eleven hundred dollars within a cortain period the sale is to be void, whether viewed as a sale on condition or with the i-iglit to redeem reserved, in either view conveys title to the purchaser, if within tlio period the vendor does not- pay his note. See Civil Code. Arts. 2021, 2043, 2439, 2567; 2 La. 103.
    The written title iu authentic form or acknowledged by the vendor is conc’usivo on tlio vendor and his heirs, unless assailed for fraud or a couuter letter is reserved. See Civil Code, Arts. 2234, 2236, 2242, 2239, 2276; 19 La. 409; 31 La. 416; 1st Hoimon's Digest, p. 534 : Ho. 4 etseq., p. 536 ; Ho. 12.
    
      Kernan tB Layeoeh for Defendants and Appellees:
    There can be no vente a remove- without a stipulation for the return of tlio prieo. A contract of sale, the validity of which is made to depend on the payment of notes which form no part of tho consideration, is not a vente a remere. Downes vs. Scott et al., 3 Ann. 278.
    AVhere it is evident that an instrument in the form of a conditional sale was intended by tlio parties to be executed in the form of a common law mortgage, it will not be regarded as a sale. 15 Ann. 386.
    Where tlio parties to the instrument both reside in a common law Stale, and the instrument is executed in a common law State in the form of a common law mortgage, there can bo no doubt- tho partios intended to create a mortgage. 12 Ann. 489.
    The conveyance of property in t-lie form of a sale does not vest the ownership in the apparent buyer, if the deed was really intended by both parties to be a mortgage, 38 Ann. 154.
    A contract of sale m which there is a stipulation that the vendor may redeem the property by returning the price within a certain time, where the vendor remains in possession of the property and the price is inadequate, will be regarded not as a sale, with the equity of redemption, but merely as a security for the return of the money paid to the vendee* unless sufficient evidence to the contrary be produced. 16 Ann. 12; 5 Ann. 99.
   The opinion of the Court was delivered By

Tono, J.

This is a petitory action instituted By the plaintiff, testamentary executor of TIios. A. Goff, deceased, late of Aurora, Indiana, to recover for the succession of the deceased a tract of land situated in East B.aton Rouge and described in the petition.

The claim is based upon an instrument set forth in the petition, and termed a sale by the plaintiff. It bears date the 28th of April, 1877, and was executed by George W. Corcoran and Martha Corcoran, his wife, residents of Kenton connry, Kentucky, in favor of Thomas Goff, a resident; of Indiana.

The instrument was indorsed, mortgage from George W. Corcoran and wife to Thomas Goff, and was recorded in the book of mortgages in tire parish of East Baton Rouge shortly after its execution, and seveval years thereafter in the book of conveyances.

Corcoran acknowledged tbe execution of the instrument and bis signature thereto before a notary public of the city of New Orleans, and. in this acknowledgment the instrument is termed or described as a deed of mortgage.

Tile act in question contained a clause substantially to the effect: “That if the vendors paid their promissory note of eleven hundred dollars and interest, held by Goff, the vendee, that then ‘ these presents shall be void.”

On the 30th of May, 1878, Corcoran conveyed, by an act of sale in its terms complete, the same land to Miss Emma Corcoran and Mrs. Agnes C. Moore, the real defendants in the suit; and on this act of sale they resist the demand of the plaintiff and claim title to the property in themselves.

The act from Corcoran and wife to Goff, of the 28th of April, 1877, on which plaintiff rests his claim to the land in controversy, was not a sale, but a mortgage only, in the common law form — the common law being the system prevailing in the States where the parties resided at the time.

It did not vest Goff with the ownership of the land, or the title thereto, and was not intended to do so; but its sole purpose was to secure tlie payment of the debt owing by Corcoran to Goff acknowledged in the instrument. 12 Ann. 480; 15 Ann. 386; 38 Ann. 154; Ib. 890.

The case last cited is that of Miller vs. Shotwell, where title was ■claimed to certain lands in this State under an instrument almost identical with the one relied on by plaintiff in the instant one. In that case the whole subject was thoroughly considered and the adjudications on the point cited and reviewed, and it was expressly ■determined that the instrument purporting to be a sale, like the one ■under present consideration, did not convey a title to the property -and could only be received as a mortgage given'to secure the payment ■of the debt set forth in the act.

Whether the debt mentioned in this act lias been paid or not, or whether the mortgage is or is not still operative against the land, is at present a matter of no concern ; the sole question being one of sale or title vel non.

This act being the sole foundation of the plaintiff’s claim, and it falling, his claim goes with it. He has no case.

Judgment affirmed.  