Maignan v. Gleises

Mathews, J., delivered the opinion of the court. This suit is commenced to compel the defendant to reconvey to the plaintiff a lot of ground in the faubourg Marigny, which the former acquired from the latter, by an act of sale passed before Felix de Armas, notary public, on the twenty-eighth day of August, 1829. The petitioner states the sale to be simulated, or, rather, a kind of vente a remere, alleging, that it was understood and agreed by the parties that the purchaser should reconvey to [4] the seller, on the latter refunding to him certain sums of money, which he had paid and advanced at and prior to the time when the sale was made. The rules relating to a commencement of proof in writing contained in the old Civil Code have not been re-enacted in the Louisiana Code; consequently our laws are now silent on the subject ofabeginning of written proof by oral testimony. Where a sale is made for other purposes than those expressed in the act, it is in the power of the vendor to take a counter letter, and by failing to do so, he precludes himself from all possibility to annul or in any manner change the contract. There is no allegation or evidence of any counter letter having been taken by the vendor when the act of sale was executed, the notarial act evidencing a sale absolute and unconditional. The plaintiff, in support of his pretensions, offered in the court below, an account and receipt, relating to charges made by the defendant against him for rent, &c., as a commencement of proof in writing, and claimed a continuance of the cause to enable him to take the testimony of an absent witness. The continuance was refused on the ground that oral proof is not legally admissible to sustain the allegations of the petition. The court then proceeded to dissolve an injunction which had been obtained, and dismissed the suit, &c. From this judgement the plaintiff appealed. The rules relating to a commencement of proof in writing, contained in the Civil Code, have not been re-enacted in the Louisiana Code; and, by an act of the legislature, passed in 1828, all the provisions of the old Code were repealed, except those which relate to the dissolution of incorporations; consequently, our laws appear to be now silent on the subject of a beginning of written proof to authorize a continuance by oral testimony. It is clear, according to the provisions of the Louisiana Code, in relation to the transfer of real property and slaves, that parole evidence, alone, is inadmissible to' prove the allegations of the petition in the present case. The act of sale, from the plaintiff to the defendant, purports to be absolute, and the evidence offered by parole is intended to show that the parties intended it to be conditional. See the Code, arts. 2255-6. There is no direct allegation of fraud, and if the sale was made for other purposes than those expressed in the act, it was in the power of the vendor to have taken a counter letter expressive of the intentions of the parties; and by failing to do so, has precluded himself from all possibility, according to law, to annul or in any manner change the contract. See 8 Martin, N. S. p. 445. Where third persons have an interest to &et aside a contract, and algllL/usvalh dity, parole evidence is from necessity-admissible. Where third persons have an interest to set aside a contract, and allege fraud against its validity, or genuineness, parole evidence is, from necessity, admissible, because, being no parties to the deed, they have it not in their power to obtain any written statement of the true character of the instrument. We are of opinion, that the court below acted correctly in refusing a continuance of the'cause; and that there is no error lit» i in its judgement by which the injunction was dissolved, and the suit dismissed. It is, therefore, ordered, adjudged, and decreed, that the judgement of the court be affirmed with costs.