37 So. 861 | La. | 1905
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.
