Franklin v. Sewall

• Decision Date: 30 March 1903
• Docket Number: 14,548
• Citation: 34 So. 448,110 La. 292
• Court: Louisiana Supreme Court
• Parties: FRANKLIN v. SEWALL. In re SEWALL

34 So. 448

110 La. 292

FRANKLIN v. SEWALL.

In re SEWALL

No. 14,548

Supreme Court of Louisiana

March 30, 1903

Rehearing denied May 11, 1903.

Action by Nancy Franklin against John A. Sewall. Judgment for defendant was reversed by the Court of Appeal, and defendant applies for certiorari or writ of review. Judgment of district court reinstated.

Shepherd & Land, for applicant.

David Thompson Land, for respondent.

OPINION

BREAUX, J.

Plaintiff brought this suit before the district court of Caddo parish for a judgment decreeing that an act of sale from her to defendant, Sewall, of date January 5, 1899, is an act of mortgage; and she asks to have it canceled and erased from the records on her paying to Mr. Sewall, the defendant the debt and interest in the deed, as the price.

Statement of the Case.

Plaintiff, after setting up her claim to the land in dispute, avers that she is an ignorant colored woman, unable to read or write, and that she borrowed from the defendant $ 150, and intended to secure the payment of same by mortgaging the above property to said Sewall, but, through error and ignorance of her rights, instead of granting a mortgage on said property, she signed what purports to be an act of sale to said Sewall of said property, for $ 175 cash, although it was not her intention to sell, but to mortgage, the property.

Plaintiff says that, after she borrowed the amount from defendant, with a portion of it she built on the lots claimed to have been bought by defendant two small houses, and that about July 1, 1899, she turned over these two houses to defendant, and requested him to collect rent thereon, and to credit same on the money she had borrowed. She alleged that she had always retained possession of the property; that this property, at the date of the deed she assails as not a sale, was worth largely in excess of $ 175, the asserted purchase price. It appears that the property was worth about $ 600.

Testimony for plaintiff as to error is to the effect: That plaintiff is an old colored woman, who cannot sign her name. That she borrowed $ 150 from defendant for one year at 10 per cent. interest. That the deed was not read to her. That she did not think that the clerk read the deed to her. That he just said, "Touch the pen." The deed was already written up, and the defendant carried them in, and said, "Take the pen," and they touched the pen. No witnesses to the sale were present. That she did not have the deed read, because she was depending on defendant. That she previously had bought property.

Defendant, on the other hand, as a witness, swore that the deed was read to plaintiff by the clerk before whom it was passed, and that there was no agreement or understanding that it was to be anything but a sale. Mr. Leonard, the clerk, testified that the deed was in his handwriting, and was passed in presence of two witnesses, and that it was always his custom to explain the contents of deeds when they were not read in full.

Defendant, in his answer to plaintiff's petition, denies plaintiff's allegations, and avers that he purchased the property outright.

The husband of plaintiff, by whom she was authorized to contract, died since the deed was executed.

The judge of the district court wrote an elaborate opinion, and dismissed plaintiff's suit, with costs, reserving her legal rights to bring an action of lesion according to law.

As the questions in dispute were carefully considered by the judge of the district court, and afterward, on appeal, by the Court of Appeal, reversing the lower court, we will insert here a synopsis of the opinion of each tribunal. The judge of the district court said in his opinion:

That the act of sale is authentic in form; that he admitted parol testimony to show fraud or error; that error as to the nature of the contract will render it void. Here the district court propounds the question whether the evidence shows error sufficient to invalidate the contract, or change its nature. The court a qua summarized the testimony of each of the parties, which is in the main as before stated, and afterward said that it is not pretended or alleged that there was any artifice or deception practiced on plaintiff to induce the belief that the instrument was an act of mortgage; that, if she did not require the instrument to be read or explained to her, it was an omission for which she had none to blame but herself.

The court further said: Where a person signs an act without reading it, he cannot avail himself of error resulting therefrom, when the party practiced no fraud (citing Allen, West & Bush v. Whetstone et al., 35 La.Ann. 850), and that a person seeking to avoid a contract on the ground of error must also show improper influence of the other contracting person (Watson v. Bank, 22 La.Ann. 14); that the allegation of error as to the nature of the contract is not shown by the evidence.

The learned judge, after laying down these propositions, took up the question whether parol is admissible to prove that an unconditional sale was intended as a security for the payment of money, and found an answer in the rule that an absolute sale by authentic act cannot be changed or varied by parol evidence.

Said the court in this opinion:

"Plaintiff's counsel argued that parol proof by the witnesses of the price and of the continued possession of the vendor is admissible for the purpose of proving that an absolute sale was intended as a mere security."

After having reviewed the decisions cited by plaintiff's counsel, the court, in answer to counsel's contention, concluded that they related to sales made with the right of redemption in fraudem legis, but that in no case cited by counsel for plaintiff the doctrine announced in the decision applied to absolute sales.

The decisions reviewed are: Parmer v. Mangham et al., 31 La.Ann. 348, which holds, briefly stated, that there was a counter letter in that decision.

Shelly v. Shelly, 36 La.Ann. 100. The contract was shown by interrogatories on facts and articles.

Howe, Ex'r, v. Powell et al., 40 La.Ann. 307, 4 So. 450. It was a redeemable, and not, as in this case, an absolute sale.

In Collins v. Pellerin, 5 La.Ann. 99, there was a counter letter.

In Le Blanc v. Bouchereau, 16 La.Ann. 11, there was a sale, with right of redemption.

The court found it had been uniformly held that the verity and reality of authentic acts of sale can be assailed by the parties thereto only in two ways, viz. by means of a counter letter, secured, or by the answer of the other party to the interrogatories on facts and articles; citing Godwin v. Neustadtl, 42 La.Ann. 738, 7 So. 744; State v. Robertson, 45 La.Ann. 954, 13 So. 164, 40 Am. St. Rep. 272.

This doctrine is in conformity with the plain provision of the Civil Code, said the court, with reference to authentic acts and sales of immovables; that, while the Supreme Court seems to have modified the rules of evidence as to redeemable sales, the Code has been strictly adhered to in cases of absolute sales of immovable property; that sales with the pact of redemption can be considered as alienations only when the price is adequate, and possession delivered (Howe, Ex'r, v. Powell et al., 40 La.Ann. 309, 4 So. 450); that in most redeemable sales the purchaser is a mere money lender, the sale is made to secure the loan, and when the price is inadequate the law looks upon the transaction with suspicion.

That while in absolute sales the law declares that the authentic act is full proof of the agreement contained in it against the contracting parties, unless it be declared and proved a forgery, the acknowledgment of payment made therein cannot be contested (Civ. Code, arts. 2236, 2237), and that, in sales of immovables, parol evidence shall not be admitted against or beyond what is contained in the acts. Plaintiff seeks to show by parol that the agreement was not to sell, but to mortgage, and that she did not receive the sum of money mentioned in the act, but a less amount. Brooks v. Wortman, 22 La.Ann. 492. Again the court said: "An authentic act cannot be assailed in this manner. Plaintiff's whole case hinges on proof of the alleged error, viz., that she intended to mortgage the property, but was induced by defendant to sign an act of sale, not knowing the nature of the contents of the instrument."

That the evidence fails to show such a state of facts. Plaintiff's testimony is contradicted by that of defendant as to what the nature of their agreement was, and as to what passed before the notary; also by the testimony of the notary that he always explains to the parties the contents of acts, when they are not read.

That such an allegation of error as that made by plaintiff must be supported by clear proof of mistake superinduced by the fraud of the other party.

The court states, where the form of a contract of sale is given to a mortgage between the parties to the conveyance, the real nature of the conveyance must be established by counter letter. Frost v. Bebout, 14 La. 108.

That the example given in Civ. Code, art. 1841, of error, has no application, said the court, to written contract; that fraud is not alleged; and that, if plaintiff sold the property for less than half its value at the date of the contract, she has still a plain and adequate remedy by action of lesion.

When the case came up before the Court of Appeal for decision, that learned court was equally as industrious in consulting decisions, and was as emphatic in support of a contrary view.

Our esteemed Brother Judge Porter, as organ of that court, said in substance, that plaintiff had not...