Keough v. J. Meyers & Co.

The opinion of the court was delivered by Bermudez, C. J. The object of this suit is to have an act of sale ■ of real estate declared to be an act of mortgage,, or, if not such, to be a nullity for lesion beyond moiety, and, if neithei’, to be an antichresis. The defense is, that the transaction between the parties was a sale, with the pact of redemption; that, by the failure of the vendor to pay the price agreed on, seasonably, he has ceased to have any title to the property, and that the ownership has vested absolutely in the purchasers. From a judgment rejecting the plaintiff’s demand, this appeal was taken. The petition is elaborate and enters into extensive details, which [955] it would be unprofitable to announce. As much, perhaps, may be said of the answer. The stubborn facts of the case may well be stated to be the follow” ing: It appears that the plaintiff, being indebted unto defendants in the sum of $1583, gave them in payment for this debt, under the form of a sale, certain property belonging to him, and that, subsequently, the purchasers sold to the vendor the same property for the sum of $1700, for notes at one and two years, secured by vendor’s-privilege and special mortgage. Fearing that he would be unable to pay the notes at maturity, the' plaintiff retroceded in advance of the maturity the property to his; vendors, the defendants, also under the guise of a sale, on the surrender to him of the two notes cancelled, with the stipulation of his right of redemption within a delay specified, on payment of the sum of $1700. The vendor was allowed to remain in possession with-r • out charge until the 1st of January, 1890. The vendor, who is the plaintiff, enjoyed the property during'that' time, failed to pay the amount stipulated within the fixed period,, offering in place to return the notes, not the amount of the same, and-to restore the status in quo; a proposition which was declined by the purchasers. The vendor continued in possession, time taking its course. In the apprehension of an ejectment, the vendor, Keough, brought-' the present suit to have his sale to Meyers & Co. declared to have been: intended by the parties as a mere mortgage to secure his indebtedness to them. , Apprehending a failure in this attempt, he charged that the sale should be annulled for lesion beyond moiety, because the price was not $1750, the amount of the notes as stipulated, but $1107194, which was the sum at which the notes had been reduced, by partial payments and credits, and the property was worth at the date $3841.50,, more than three times the consideration truly received. I. It may well be, that the act of January 3, 1889, which is ostensibly a sale by Keough to Meyers & Co., the consideration of which was the return to him of his two notes of $875 each, aggregating $1750, was not in reality a sale, as there was really no price paid, or to be [956] paid; but this would not make it to be a mortgage under any circumstance, for the very obvious reason, that there existed no sensible reason for a transaction between the parties under that form, inasmuch as the debt which could have been thus secured was at that time guaranteed by a vendor’s privilege and a special mortgage on the same property. ■ The transaction was rather a dation in payment of the property by ■Keough to Meyers & Co., in consequence of which his liability to them on the two notes was extinguished,- which were cancelled and returned to him. II. The next complaint, somewhat inconsistent and antipodal, is that, if the transaction was not a mortgage but a sale, it should be annulled for lesion beyond moiety. On this score the plaintiff contends that the real consideration was §1167.94, and that the property was worth §3841.50. It is unnecessary to stop to consider whether the plaintiff is or not entitled to the credits which he claims on the notes, and it shortens investigation to accept his own figures. On the trial' he offered testimony to show the value of the property. Two of his witnesses appraised it at §2500, and a third one at between §1200 and §1400; while the three witnesses heard on behalf of the defendants, equally reliable, estimated it from §1100 to §1300, which would give an average of §1600, at the most §1700. Now, if the consideration was §1167 and the worth of the property was §1600, or even §1700, how can it be seriously claimed that there was lesion beyond moiety? During the trial the property was offered by Meyer to Keough for §2000, in which were, probably, included the §1700 and the value of the occupancy and enjoyment by Keough, §300. The offer was not accepted. It would seem, besides, that Keough should be, to some extent, estopped from claiming that the property was sold for less than half of its value, for the reason that it appears that on April 24, 1884, he gave it in payment to Meyers & Oo. of the sum of §1583, which he acknowledged then owing them, and they, on the same day, sold it, apparently to him, for §1750, for which he issued the two notes already mentioned. No material subsequent enhancement has been shown. [957] III. The pretension that the transaction was in the nature of an antichresis is abandoned. The District Judge made a correct appreciation qf both facts and law. k ' We concur with him that the act was not a mortgage, but a sale; that the property was transferred for an adequate and just consideration ; that the failure of Keough to redeem the property within the time limited has stripped him of all claim to the ownership, which has thereby absolutely vested in Meyers & Oo., who must be quieted therein. Judgment affirmed.