First Nat. Bank of Atlanta, Tex. v. Thomas

BRUNOT, J. This case was before us, on appeal, in Í929. It is reported in 168 La. 481, 122 So. 5S9. The ease is stated in that opinion and it is not necessary to restate it here. On the first appeal all of the issues were disposed of except one of fact, upon proof of which the proper decision of the ease hinged. On the first trial the lower court excluded proof of the character of defendants’ possession of the property after the expiration of the redemptive period fixed in the deed of sale. In our opinion, this ruling was erroneous, and we remanded the case for the admission of proof of that fact. On the second 'trial the said excluded proof was admitted, the trial judge adhered to his original opinion, and plaintiff has again appealed. At the outset we will say that upon defendants’ failure to redeem the property during or at the termination of the redemptive period, an absolute title to it thereby vested in the plaintiff, subject only to proof, to the degree of reasonable certainty, that the defendant thereafter possessed the property in a capacity other than as owner. In this connection we cite the following cases: Levy v. Ward, 32 La. Ann. 784; Jackson v. Lemle, 35 La. Ann. 855; Marbury v. Colbert, 105 La. 470, 29 So. 871, 872. The Ward and Jackson Cases hold that a judicial affirmance of the title is not necessary,' and in the Mar-bury Case the court said: “A sale which stipulates the equity of redemption — vent a remere — passes title to the purchaser, but to this end it is necessary that the vendee should give a real and reasonably adequate consideration, and take actual possession of the property, or else that such explanation be forthcoming, when required, of the continued possession of the vendor as excludes the idea of his still existing ownership.” On the first appeal we found that, owing to the then existing local conditions, the price stipulated in the deed of sale was adequate consideration for the property. The testimony in the record now before us is not entirely" satisfactory, but our consideration of it has led us to the conclusion that it is sufficiently convincing to meet the burden of proof imposed upon the plaintiff by reason of the defendants’ continued possession of the property. Summarizing the testimony, we find that defendant denies that he sold or intended to sell the property. He admits that he owed the plaintiff a past-due'indebtedness of more than $2,000. He admits that he executed and signed the deed, which, on its face, purports ■ to be an act of sale, with the right reserved therein to redeem the property on or before the first day of the following January, upon the payment to the plaintiff of $2,000. He admits that, after the expiration of the period of redemption, he agreed to pay the plaintiff $200 per year and to pay all taxes assessed against the property, annually, if permitted to remain in possession of the property. He says that the $200 annual payment represented the interest on his indebtedness to -the plaintiff, but he makes no attempt to explain *776 his agreement to pay all taxes assessed against the property. I-Ie admits the genuineness of certain letters, testified to on the first trial, which he wrote to the president of .the plaintiff bank, and he has offered evidence showing that, during the years subsequent to the expiration of the redemptive period, he has, on three or four occasions, paid out small sums for the repair and maintenance of the dwelling on the premises in which he lived. On the other hand, the former president of the plaintiff bank, but who is 'not now connected with that institution, testified that he, personally, conducted all of the transactions the defendant had with the plaintiff bank. He testified that the deed transferring the property of the defendant to the plaintiff was a bona fide sale of the property, with the right of redemption; that, after the expiration of the period of redemption, the defendant wanted to retain possession of the property because of its probable enhancement in value, by reason of prospective oil developments in the locality, and he agreed to permit the defendant to remain in possession upon the payment to the plaintiff of $200 per year as rent therefor, and upon payment of all taxes, assessed against the property. He further agreed that if defendant found a purchaser for the property, for a price in excess of its cost to the plaintiff and such other sums as the defendant might' then owe the plaintiff, the plaintiff would transfer the property to such purchaser and would pay to defendant the total price received for the property, in excess of such sums, as compensation to him for negotiating the sale! He testified that, under this agreement, the defendant paid the stipulated rent for one year and, as payment of rent for the three following years, the plaintiff accepted the defendant’s promissory note for $700. It is shown that the $700 note was executed and is held by the plaintiff. It is shown that, from the date of the deed, the property has been assessed as the property of the plaintiff, and that defendant has annually paid the taxes on that assessment. It is shown that, after the period of redemption- expired, the property was carried on the ledger of the plaintiff bank as real estate owned by the bank, and that the note representing the defendant’s original indebtedness to the bank was cancelled. The certified copies of the bank’s ledger sheets, in the record, show that the defendant was charged with the rent of the property for the years 1912, 1943, and 1914. Mr. King, the then president of the bank, testified that at a later date he agreed to transfer the property to the defendant for the sum and price of $3,500, represented by five notes of $700 each, payable in 1, 2, 3, 4, and 5 years after date; that these notes were drawn and signed by the defendant in the bank; that defendant was to have the deed prepared, and the notes were given to him for that purpose, but the defendant failed to carry out the agreement. On the trial, the defendant denied that he signed the notes. The notes are not sent up in the original for our inspection, but it is shown that the space where the signature should be affixed has been partially cut off, and, in commenting on one of these notes, which was offered in 'evidence, in this case, the trial judge said: “This note has been signed by somebody. The witness’s testimony is that he did not sign anything.” (Trans, p. 71.) The defendant admits that he has not had possession of the property as owner since 1914. He says he sold the property, in 1914, to his son-in-law, and his possession since that time has been for his son-in-law. (Trans, p. 75.) *778 In the former suit we held that this sale was a simulation and avoided it. The defendant’s testimony does not impress us seriously, especially when considered in connection with this and a second simulated sale, which was also avoided in the original suit. On the other hand, the testimony of Mr. King is supported by the records of the plaintiff bank; by the assessment of the property in the name of the bank; by defendant’s payment of the taxes on that assessment; by his payments, for possession and occupancy of the property, first by a cash payment for, at least, one year, and thereafter by note for about three years, after the expiration of the period of redemption fixed in the deed of sale. The testimony as a whole convinces us that defendant’s possession of the property, after the expiration of the redemptive period, was not as owner, but, first, as lessee of the bank, and, subsequently, by sufferance, as .custodian for the bank. For these reasons the judgment appealed from is reversed; the defendant’s plea of proscription acquirendi causa is overruled, and it is now decreed that plaintiff be, and it is hereby recognized, as the owner, with valid title, to the following described property: The northeast quarter of northwest quarter of section 23, township 29 north, range 16 west, Louisiana meridian, and lots 8, 9, 10, 11, and 12, of block 6, and lot 2, of block 21, of the town of Odessa Caddo parish, La., and that the costs of this appeal be paid by the defendant.