Mulhaupt v. Youree

The opinion of the Court was delivered hy Bermudez, C. J. This is an action to annul a sale with the pact of redemption, on the ground that the contract was one of mortgage or of antichresis. The defense is, that the agreement was a vente a réméré ; that within the delay allowed for the redemption, defendant loaned plaintiff a certain sum of money to be refunded on a particular day, under penalty of a forfeiture of tbe right to redeem; that by the failure of plaintiff to pay on the day stated he lost the right of acquiring the property. [1054] The District Judge considered the transaction as a sale with the pact of redemption, but rendered judgment annulling the same, on payment of a certain sum by plaintiff, within a stated delay. From this judgment the plaintiff appeals. No amendment is asked by the defendant. The evidence shows, that on the 5th of March, 1880, the plaintiff Sold to defendant certain real estate and an interest in a market, for the sum of five thousand dollars, reserving the right of redeeming the same on return of the price, at the end of three years; that the defendant, the purchaser, was put in possession of the property thus sold; that on August 20th, 1881, defendant loaned plaintiff $1,500 with the condition that, if the same was not paid back on the 1st of January, 1882, the plaintiff would then forfeit the right of redemption reserved in the act of March 5th, 1880; that the time of redemption was extended to March 5th, 1883; that the plaintiff did not then tender the whole amount required to redeem the property. ■ In his inability to produce any written evidence, which was the only admissible proof in the absence of a charge of fraud or error, to show that the contract was one of mortgage or of antichresis, the plaintiff ventured to probe the conscience of his adversary, who answered the interrogatories in a manner which establishes his defense. The reasons assigned by the District Judge show an elaborate and thorough investigation of the differences of the parties, and justify his conclusions. It is, therefore, ordered and decreed that the judgment appealed from be affirmed with costs.