39 La. Ann. 488 | La. | 1887
The opinion of the Court was delivered by
The third opponent claims the ownership of the real estate attached, for having acquired it Iona-fide and for a valuable consideration from defendant.
The defense is that the title set up is a simulation, no consideration having passed.
On that issue, the parties went to trial.
The lower court allowed evidence to show the nature of the transaction and considered it as a contract of suretyship, directing payment of opponent’s claim out of the proceeds of sale in preference to all others.
From the judgment thus rendered the opponent appeals.
The opponent introduced in evidence an act purporting to be a sale by defendant to him of the property in question for $2000, in settlement of which he appears to have paid cash $800 and to have assumed payment of a note of $1200 secured on the property.
The act contains a clause or pact reserving to the vendor the privilege of redemption on payment of $2000, to be exercised within two years after the date of the act, (21st November, 1884). It is shown to have been registered in the conveyance office on the following day.
The evidence shows that the $800 said to have been paid cash, were settled for in flour, delivered on the day of sale and that the assumed note was taken up at maturity.
Possession followed the sale: but, by contract, the purchaser leased the premises to the vendor for two years, at $20 per month, which were paid.
The property is shown to be worth more than $2000 — so much so, that it would seem that there was some understanding between the parties as to a division or attribution of the surplus, in case of a sale of the property by the third opponent, within the delay allowed for redemption, to anyone whom the original owner would designate.
When the attaching creditors offered to prove the. real nature of the transaction, the third opponent excepted on the ground that the contract being ostensibly valid and the act evidencing it havingbeen duly and seasonably recorded and the plaintiffs having pleaded simulation
The objection was considered as going to the effect and was overruled. A bill was reserved which is insisted upon here.
The evidence was inadmissible for the purpose in view; but it could be received, to be restricted, however, under the pleadings.
The conclusions of the district judge, nevertheless, show that he gave it more effect than it was entitled to, as he does not recognize the third opponent as owner, but merely as a creditor having a claim for which the real estate stands as security and which is to be paid by preference out of the proceeds of sale over all other claims.
In other words, he ignores the transaction as a sale and treats it as one designed to secure a debt due the apparent purchaser.
It is settled, beyond the possibility of a doubt, that a bona fide sale of property for valuable consideration, coupled with the pact of redemption, transfers the ownership to the purchaser, under a condition suspensive as to the vendor, resolutory as to the vendee, and that the creditors of the former cannot, where the sale is duly recorded, treat the transaction as of a different nature, so as to subject the property to their claim without first attacking the sale directly and having it judicially annulled, or modified according to the true intent of the parties. Laurent, vol. 24, No. 388; Baudry Lacantinerie, vol. 2, Nos. 941, 942; vol. 3, Nos. 584, 1045; Duranton, vol. 16, § 388 et seq.; Mourlon, vol. 3, No. 630, p. 255; Marcadé, vol. 6, p. 301; Calderwood, 23 Ann. 661; Guidry, 29 Ann. 4; Theurer, 28 Ann. 29; Bevers, 30 Ann. 186; Brown, Ib. 966; Levy, 32 Ann. 784; Willis, 33 Ann. 1026; Jackson, 35 Ann. 856; McCan, 38 Ann. 483; Ford vs. Douglass, 5 How. 143. Whatever may have been said in Palmer vs. Mangham, 31 Ann. 356, to the contrary must be deemed as overruled.
The evidence introduced by plaintiffs, as far as it may tend to show anything beyond simulation, ought not to have been considered; but, as it shows that a consideration passed and confirms the pretensions of the third opponent to the ownership of the property subject to the pact d réméré, it ought to have been given that effect.
We are at a loss to conceive how the contract could be treated as one of suretyship in the absence of any evidence of any indebtedness of the vendors; nay, in the presence of proof, that the third opponent was not at all a creditor.
As it is possible that the privilege of redemption was exercised within the delay allowed, which expired on the 21st of November, 1886, since the case was decided below, (June) we cannot render a judgment
We will simply remand the ease.
It is therefore ordered and decreed, that the judgment appealed from he reversed and that the case be remanded to the lower court for further proceedings according to law, and that plaintiffs pay costs of appeal, those of the lower court to abide the result of the suit.
