32 La. Ann. 94 | La. | 1880
The opinion of the court was delivered by
The plaintiffs having obtained judgment on the 28th of April, 1876, against John Mannion and Oliver Ellsworth, commenced in March, 1877, this action against M. Finnerty to have declared a fraudulent simulation a sale of real estate made by Mannion to Finnerty, on the 7th of January, 1875. The defendants answered by a general denial and by specially pleading that the sale was valid and made for -a sufficient consideration. The lower court decreed the sale simulated. Finnerty appeals.
There is conflict in the testimony, but we think after an attentive examination that it proves that although the sale was not intended by the parties as a real sale, it was, nevertheless, intended to be and was a real contract to secure a sum loaned by Finnerty, as also future loans or expenses to be by him incurred. In other words, that Mannion at the time of the sale was indebted to Finnerty in the sum of six hundred dollars, evidenced by two notes for three hundred dollars each, payable on demand, and bearing eight per cent per annum interest, dated the one the 10th November, 1874, the other December 15,1874. That desirous of further loans, it was agreed between the parties that a sale should be made to Finnerty not only to secure the debt due him but any further loan he might make; and that on payment of the sum due, as well as all amounts disbursed by Finnerty on account of the property, which was unimproved, a retrocession was by him to be made. That under the sale Finnerty went into possession of the property, and subsequently advanced, on February 17, 1875, $200; on June 28th, 1875, $300; and at various other dates small amounts, aggregating $35, the two first items having been evidenced by demand-notes bearing interest from date until paid. That besides these amounts, Finnerty paid taxes 'and other expenses, amounting to $131 50. The lower court disregarded the proof that the contract was intended to be a security, as it ruled that
It is therefore ordered, adjudged, and decreed that the judgment below be reversed; and proceeding to render such judgment as should have been rendered below, it is ordered, adjudged, and decreed that the property mentioned in plaintiffs’ petition be decreed to be that of John Mannion, subject, however, to the payment to Martin Einnerty of the sum of twelve hundred and sixty-six 50-100 dollars, with interest at eight per cent on the amount hereinafter specified. That said property be decreed subject to plaintiffs’ execution, but that from the proceeds said Finnerty be paid by preference the aforementioned sum with the following interest: Eight per cent on $300 from November 10th, 1874, until paid¿ on $300 from December 15th, 1874; on $200 from February 17th, 1875; and on $300 from June 28,1875. The costs below to be borne by the defendants ; those of the appeal by the plaintiffs.
Rehearing refused.