Keel v. Sutherlin

• Decision Date: 29 January 1912
• Docket Number: 18,670
• Citation: 130 La. 182,57 So. 794
• Court: Louisiana Supreme Court
• Parties: KEEL et al. v. SUTHERLIN et al

57 So. 794

130 La. 182

KEEL et al. v. SUTHERLIN et al

No. 18,670

Supreme Court of Louisiana

January 29, 1912

Rehearing Denied February 26, 1912.

Appeal from First Judicial District Court, Parish of Caddo; Thos. F Bell, Judge.

Action by Maud Curtis Keel and others against E. W. Sutherlin and others. Judgment for plaintiffs, and defendants appeal. Affirmed.

N. C Blanchard and J. D. Wilkinson (S. L. Herold, of counsel), for appellants.

Frank J. Looney, for appellees.

OPINION

PROVOSTY J.

This is a suit to annul a conveyance of minor's property as having been made without observance of the formalities prescribed by law.

No evidence was taken, the parties having entered into a written agreement that the case should be decided on the pleadings. Whether this meant that only the facts alleged in the petition should be considered, or also those in the answer, is now matter of dispute; but it is immaterial, since the defendants lose in either event.

The facts taken from the answer are as follows: In 1901 the mother of the plaintiffs sold the property in question, which was her homestead, to Spell, and delivered possession. She reserved the right to redeem, on reimbursing Spell the purchase price of $ 350, with 8 per cent. per annum interest. This reservation was made in the act of sale itself, and without limit as to time. She died in 1904. The two plaintiffs, whose father had died previously, were left penniless, save for the said right of redemption, considered of little or no value, and were taken charge of by relatives. In the latter part of 1904, the said land began to show signs of greater value, as an effect of the tendency of the Caddo oil field to extend in its direction, and the grandfather of plaintiffs bethought him of the advisability of redeeming; and as Spell was claiming that the right of redemption had been lost, because of not having been exercised in time, and that his title was absolute, the grandfather consulted the defendants, who are lawyers, and offered to give them one-third of the property as their compensation if they should recover it for the minors by either suit or redemption, they to furnish all moneys necessary for that purpose, and be reimbursed out of the share of the minors. The grandfather was as destitute as the minors were of the means wherewith to redeem the property. Defendants would not then undertake to furnish the money, as they thought that for making the redemption the taxes paid by Spell and interest thereon would have to be added to the purchase price and interest, and that the property was not worth that much. But they deemed it advisable that the grandfather should qualify as tutor, and that the land should be inventoried as belonging to the minors; and this was done, they acting as attorneys in the matter. Things remained in that condition for some four years, until April, 1908, when a written contract was entered into between the grandfather as tutor and the defendants, whereby the defendants were to have one-third of said property for the recovery of same by suit or redemption, they to furnish all moneys necessary for that purpose, and be reimbursed out of the share of the minors. On the day itself on which this contract was entered into, defendants tendered to Spell $ 640 in redemption. Spell refused to accept. Two days later, April 10, 1908, defendants brought suit. In this suit they made the allegations, among others, that the redemption sale was a mere contract of security, and that the minors had continued to be owners of the property. On receiving service of citation, Spell concluded to accept the tender; and on April 14, 1908, executed a formal reconveyance to the minors. This was six days after the contract with the defendants had been entered into, and four days after suit had been brought. The redemption money was furnished by the defendants. On the 28th day of April, 1908, 14 days after the property had been retroceded to the minors, a family meeting was held, and the said contract by the tutor with the defendants was duly ratified, and the tutor was authorized and directed to carry out the same; and accordingly, on the same day, April 28, 1908, he did so, by executing in favor of the defendants the conveyance now sought to be annulled.

Defendants contend that the property did not belong to the minors, since their mother had sold it; that all they had was the right to redeem; and that a contract for enabling them to exercise this right was not an alienation of the property, but was, on the contrary, in fact and in law, a contract for the acquisition of the property, or of whatever portion of it would inure to them under the contract.

This contention is not very consistent with the fact that the defendants caused the property to be inventoried as belonging to the minors, and alleged in the suit which they filed for the minors that the redemption sale to Spell was a mere contract of security. Again, the very fact itself of a sale being made with right of redemption, instead of out and out, indicates that the vendor has not the intention of finally parting with the ownership; and the reserve of the right of redemption is the resolutory condition on the accomplishment of which matters are placed in the same situation as if the sale had never taken place (C. C. art 2045); so that the right of redemption in principle at least would seem to represent in the hands of the vendor the property itself. But putting aside all this, and assuming, for argument, that the only thing the minors owned was this right of redemption, this right, such as it was, was property, and by an inflexible statutory rule (article 341,...