
    No. 1446.
    Annie W. Wilkins vs. Adelin Durio et al.
    Plaintiff placed the title to her property in the name oi‘ her creditor as owner as security in his favor.
    Many years afterward it was conveyed by the party in whose name the title was to a third party, with plaintiffs consent.
    Plaintiff subsequently became the lessee of the property.
    It not being proven that the parties intended to create an act of mortgage in adopting the form of the sale:
    The consideration not being greatly inadequate:
    The act of sale and the lease concurring in sustaining the sale, it must be held that it was a sale and effect given to the authentic deed between the parties.
    
      APPEAL from the Nineteenth District Court, Parish of St. Martin. Voorhies, J.
    
    
      William H. Peterman and E. Simon for Plaintiff and Appellant.
    
      Thomas H. Lewis, James E. Mouton and Robert Martin for Defendants and Appellees.
   The opinion of the court was delivered by

Breaux, J.

The most valuable portion of the land claimed by the plaintiff was sold to her by Zenon Broussard in 1878 for the price of $8930.66.

A short time prior to that year her vendor, Broussard, under sheriff’s adjudication, had acquired it for $5700,

The other portion she claims as forming part of the plantation was sold to her also by the said Broussard; it consisted of, a small adjacent tract.

At the time of Broussard’s death in 1881 the plaintiff was indebted to him in the sum of $8720.70, and several years’ interest, being the unpaid purchase price on the plantation.

His widow, at the sale of the property of his succession, became the owner of the notes made by plaintiff and representing the purchase price of the plantation.

The owner of these notes, Mrs. Broussard, recovered judgment upon them in 1883, and granted a stay of execution until February, 1884.

In 1885 Mrs. Neblett, plaintiff in this suit, sold the plantation to Mrs. Broussard the holder of these notes, the amount and interest of which amounted at the time to $13,484.47.

The deed recites that the plantation is conveyed and given in pay - ment in, satisfaction of vendor’s indebtedness to vendee.

The act contains the recital “ that the vendor (Mrs. Neblett) will continue to live and reside on said plantation until the 1st of February, 1886, on which day she will move away from and vacate the premises and deliver actual possession of all of said property.”

“And that in case she should refuse to vacate and deliver the said plantation,” she obligated herself to pay the sum of $500, and all other damages.”

Mrs. Broussard, the vendee, bound herself to reconvey the plantation to the vendor upon the latter’s payment to her of $9000, at any time prior to the 1st of February, 1886.

Mrs. Neblett remained in possession.

She was called upon by her creditor, Mrs. Broussard, for the amount due.

A short time subsequent, i. e. in 1886, plaintiff’s brother called on Mrs. Broussard and obtained from her the promise to take $6000 in cash and $3000 on time in satisfaction of her claim.

He offered his note for the credit portion of the payment, and this Mrs. Broussard consented to accept.

Subsequently to this instead of the $3000 in notes, she agreed to take $1500 in cash.

Mrs. Broussard, after this agreement, authorized her agent to sell the plantation for an amount not less than $6000.

At this point of the case the defendant, Durio, became a party to the transactions.

The agent of Mrs. Broussard, Judge O. H. Mouton, called on Durio and offered to sell a portion of the place for that price.

This was declined.

Plaintiff’s brother informed the witness that he would pay to the agent the $1500, before mentioned, if he sold to Durio. There was no agreement whatever entered into between him and the said defendant, Durio, about this amount.

He sold to him for the price of $6000, without reference to any other amount.

The act of sale by Mrs. Broussard to the defendant, Durio, bears date 4th May, 1886.

It is unconditional and absolute. The purchase price was paid cash as recited in the deed. No reference is made in this deed to any loan made to Mrs. Neblett, or to any right of hers on the property.

The same day the purchaser, Durio, leased the plantation to Mrs. Neblett for the sum of $488.20 annual rental and all the taxes on the place each year of the lease. This lease was entered into for the term of three years.

Immediately after these acts were executed the defendant, Durio, by authentic act, promised to sell the plantation to the lessee, Mrs. Neblett, for $6102, provided she paid him that sum on or before 31st December, 1888.

In default of payment the promise to sell was to become null and void ipso facto.” It was agreed that the same stipulation should also apply if the rent notes were not promptly paid at their maturity.

At the expiration of this lease it was renewed for three years, also the promise to sell.

About twenty days prior to the expiration of the lease and the term of the promise to sell, Durio notified the plaintiff that he would not renew the lease and that he would take possession at the end of the year.

The plaintiff, Mrs. Neblett, wrote to the defendant: “We expect to have the amount ready for you in time, as we know it is due; and should we not, we know of course we must give possession according to agreement.”

The value of the place is one of the issues presented.

The estimates of witnesses who testified upon the subject greatly differ and is quite contradictory.

The amounts for which lands were sold in the vicinity offer a safer criterion of value, also the'price this plantation sold for at different times, together with the testimony of witnesses, who somewhat accord in their estimate, with the market value of the plantation as established by sales and transactions. Hollingsworth vs. Hollingsworth, 45 An.

The amount of the annual lease of the place.

The price at which the plantation was sold at sheriff’s sale.

The abandonment of amounts by the owner, Mrs. Broussard, and the amount she was willing to take for her claim and which she finally accepted, do not prove correctness of the high estimate of a few of the witnesses.

Plaintiff obtained possession at the expiration of the lease.

These are the facts.

On the Merits.

Plaintiff’s petition sets forth clearly the grounds upon which she relies to have a contract, evidenced by authentic act, declared to be a mortgage or security for debt.

She avers that the dation en paiemeni by Mrs. Broussard to her was never intended to divest her title to the property, for .she never claimed title or possession as owner, but left her in full control.

That the office of the dation en paiement was to secure the indebtedness by placing the title in the name of Mrs. Broussard.

She alleges that Durio loaned' her the amount, and desiring to indemnify him against all loss and to secure him, she consented that proper title to the same should pass directly from Mrs. Broussard to Adelin Durio, “ it being further agreed that the annual interest of said loan should be secured to the said Durio by obligations in the shape of rent notes, and that the return of the title to said property to her name should be warranted by a promise of sale on the part of said Durio.”

The defendant interposed an exception that plaintiff, asa condition precedent to the institution of her action, should have tendered reimbursement to the defendant.

The defendant pleads the general issue, and sets forth the different transactions and grounds upon which he relies.

The judgment of the court a qua was pronounced in his favor, from which the plaintiff appeals.

The counsel for plaintiff disclaim that the action is revocatory or to rescind any of the acts connected with the title to the plantation, in this suit.

They argue that the deed from their client to Widow Broussard did not operate a divestiture of title, and they contend that the defendant knew that the plaintiff was the owner of the land, and in possession, and urge that the defendant took proper title from Widow Broussard as security for his loan.

The relief prayed is that the defendant shall convey, under the judgment for which they sue, title to the property, and that his claim be recognized as alien upon the property, and that she have reasonable time within which to pay it, and that possession of the property be delivered to her.

The evident purpose is to apply the principles laid down in Howe, Executor, vs. Powell et al., 40 An. 308; and in other authorities referred to in that decision in the case at bar.

The doctrine is stated as being settled that redeemable sales, unaccompanied by delivery of the thing sold, of which the consideration is inadequate, will be treated by courts, without sufficient evidence to the contrary, as contracts for which the thing nominally sold stands as security and nothing else.

It devolves upon the plaintiff to bring her cause within the application of these principles, that she may sustain her contention.

The Broussard act remained in the record, unquestioned as a sale, during nearly an entire decade, during which plaintiff was the vendor, without any written evidence whatever that she was the owner.

The vendees during the time have passed away.

The secret equities existing at the time, the verbal promises and conversations are now invoked by plaintiff as affecting the authentic act.

That which was a sale on the face of the papers would now be changed by plaintiff to a mortgage conferring hypothecary rights.

The verbal agreements, as testified to on the trial, are doubtless true.

But how unstable and uncertain would be title to immovable property if, after so many years, parol evidence were admissible to alter and change them.

The owner, who appears of record as defendant’s immediate author, desired to realize, it is said, the amount of her claim on the property.

It was known to plaintiff prior to the sale that she was offering the property for sale for an amount not less than $6000.

The plaintiff did not protest against the inadequacy of the price. She did not in the least object — on the contrary she gave the offer her unqualified approval, and sought and earnestly requested the defendant to become the owner. He finally consented and purchased. In all the preliminaries preceding the sale the plaintiff did not make any attempt to secure the recognition by an act or the least writing, of the right she now sets up to the property.

Immediately after the sale she became the lessee of the property. During these years she held it as plaintiff’s lessee, by authentic act.

She during the whole time unqualifiedly, admitted that plaintiff was the owner.

At the end of the three years the contract of lease was renewed, and during three more years she continued holding for the plaintiff as his lessee of the property.

On the face of the papers the defendant is a third person as to all transactions and acts preceding the one under which he became the owner.

His relation to these transactions can not be changed and he made a party to them, or affected by them, by verbal contradictory statements.

“ When parties really intend to create a mortgage for the security of an existing or contemplated debt, and adopt the form of a sale with a counter letter, which, taken together, exhibit such intention, the contract will be construed as a mortgage, and effect will be given to it accordingly. But when the act of sale and the counter letter both concur in asserting that it is a sale, the letter containing the agreement that the vendor may redeem within a given time, it must be held to be a sale with the right of redemption, and if the right is not exercised within the time agreed on it is lost forever.” 35 An. 271.

The act of sale and the lease in the case at bar both concur in establishing that it is a sale and not a mortgage.

She was, it is true, in possession, but her possession was not that of an owner.

She paid the taxes on the property — these taxes in the contract of leases he bound herself to pay.

The price has not the feature of “ vile ” or gross inadequacy as was the case in 40 An. 307.

So that the case at bar differs from those in which this court has interpreted certain contracts as securities for the payment of debts, and not as sales as they purported.

Parties have none to blame but themselves who remain quiescent, or who hastily lend their approval, without securing themselves against the force and effect of authentic deeds.

Having reached this conclusion as to the legal effect of defendant’s authentic deed of sale, the objection to the process of ejectment and the legal proceedings by which defendant obtained possession lose importance.

The plaintiff urges certain grounds that would have been substantial and of some avail, if petition for conveyance, by proper muniment of title, had been granted.

Moreover, there was a settlement after the proceedings of ejectment, a compromise entered into and payment made, which concludes plaintiff.

It is therefore adjudged and-decreed that the judgment appealed from be affirmed at plaintiff and appellant’s costs.  