Gautreaux v. Harang

183 So. 349, 190 La. 1060, 1938 La. LEXIS 1341

• Court: Supreme Court of Louisiana
• Decided: July 7, 1938
• Docket: No. 34673.
• Status: Published

Opinions

LAND, Justice.

(1) On February 14, 1923, Olivanne Acosta executed by notarial act before A. L. Deramee, Notary Public for the Parish of Lafourche, the transfer of a certain tract of land in that Parish:

"Being the same property, acquired from D. Harang about the year 1920.

“Appearers hereby declare by these presents, that this sale is made to secure a debt on said described property and that no Revenue Stamps are to be attached hereto.

“The price and consideration for which this sale is made is declared to be the sum of Thirty-Seven Hundred and Fifty ($37-50.00) Dollars cash in hand paid, at the signing hereof, the receipt of which is hereby acknowledged.”

This act of transfer was recorded in the Parish of Lafourche February 16, 1923. T. 23, 24.

Olivanne Acosta, vendor, although a resident of Lafourche Parish, died intestate on the 23rd day of September, 1934, at the Baptist Hospital in the City of New Orleans.

Dominique Harang departed this life in the Parish of Orleans, the place of his domicile, on the 8th day of August, 1923.

On January 30, 1937, the widow and heirs of Olivanne Acosta executed a sale by notarial act to James J. Tracy of an undivided one-half interest in this property. This act of sale was recorded in the Conveyance Records of Lafourche Parish February 1, 1937. T. 25, 26, 27, 28.

(2) The widow and heirs of Acosta, and Tracy now sue to be recognized as the owners of the tract of land mentioned in the act of February 14, 1923, alleging that said act establishes an antichresis in favor of the apparent vendee, Dominique Harang, to secure the payment of certain mortgage notes executed by Olivanne Acosta on this property, amounting to the sum of Three Thousand Seven Hundred and Fifty Dollars ($3750).

Defendants, on the other hand, contend that the act of February 14, 1923, is a cash sale, and that thesé identical mortgage notes were surrendered by Olivanne Acosta in payment of the cash purchase price of Three Thousand Seven Hundred and Fifty Dollars.

(3) The act of February 14, 1923, does not pretend to create a present existing indebtedness for which the sale is made as a security. But, it does specifically refer to a pre-existing indebtedness in the declaration “that this sale is made to secure a debt on said described property, being the same property acquired from D. Harang about the year 1920.”

Referring to the notarial act of sale from Dominique Harang to Olivanne Acosta, made January 9, 1920, we find that “the debt on said described property”, referred to in the act of February 14, 1923, consisted of $3,750, in five mortgage notes on this property, executed by Acosta, the purchaser, for the payment of the balance of the purchase price; and we observe also that the amount of these mortgage notes is the identical amount of $3,750, stated in the act of February 14, 1923, as the amount of the cash purchase price alleged to have been paid for the property described in that act.

It is stated in the act of sale from Ha-rang to Acosta, of 'date January 9, 1920, “and for the balance of said purchase price the said purchaser has furnished his five certain promissory notes dated this day drawn by himself to the order of and endorsed by himself in blank as follows: 1st note for $700 payable one year after date, 2nd note for $750 payable two years after date, 3rd note for $750 payable three years after date, 4th note for $750 pay able four years after date, and 5th note for $800 payable five years after date, with interest at the rate of eight per cent per annum from date, payable annually until final payment of said notes, which after having been paraphed “Ne Varietur” by me Notary for identification herewith were delivered to the said vendor (Harang) who acknowledged receipt thereof.” T. 21.

The total of these five notes makes exactly $3750, the identical amount of the cash purchase price stated in the act of sale from Olivanne Acosta to Dominique Harang of date February 14, 1923. No question can arise as to the exact amount of principal and interest due under these notes, nor as to the exact time of the payment of the principal and interest. There is therefore no such vagueness in the act of sale in this case as to the indebtedness to be paid under the sale as a security as would invalidate the act as an antichresis.

In order, to make certain that no ambiguity could arise as to the question, whether this act of salé was intended by the contracting parties as a security for this pre-existing indebtedness, the words “No Revenue Stamps are to be attached hereto” follow immediately the words “Appearers hereby declare by these presents that this sale is made to secure a debt on said described property

The applicable Federal Statute in force at the time of execution of the sale of February 14, 1923, relied upon by plaintiffs as the act of antichresis, with reference to documentary stamps, reads as follows:

“Conveyances: Deed, instrument, or writing, whereby any lands, tenements, or other realty sold shall be granted, assigned, transferred, or otherwise conveyed to, or vested in, the purchaser or purchasers, or 'any other person or persons, by his, her, or their direction, when the consideration or value of the interest or property conveyed, exclusive of the value of any lien or encumbrance remaining thereon at the time of sale, exceeds $100 and does not exceed $500, 50 cents; and for each additional $500 or fractional part thereof, 50 cents. This subdivision shall not apply to any instrument or writing given to secure a debt.” Revenue Act 1921, c. 136, title 11, Stamp Taxes, Schedule A, par. 6, 42 Stat. 305. Only the trivial amount of $3.50 was due for Revenue Stamps when the act was passed. The very language itself of this Federal Statute is written into the act of sale of February 14, 1923: “to secure a debt” and “on said described property.”

(4) That the purpose of the contracting parties, in making the sale in act of sale of February 14, 1923 was “to secure a debt on said described property” cannot be well doubted, since the language used in this act is plain and free from all ambiguity.

Article 1945 of the Revised Civil Code, par. 3, declares:

“That the intent is to be determined by the words of the contract, when these are clear and explicit and lead to no absurd consequences.”

As stated in the syllabus of Rolland’s Heirs v. McCarty, 19 La. 77:

“The court will not presume, that parties make use of words in their contracts to which no meaning is attached by them. Some effect is to be given to every word if possible; and but rarely will the court reject words or phrases in a contract as surplusage.”

(5) “The pledge is a contract by which one debtor gives something to his creditor as a security for his debt.” R.C.C. Art.' 3133.

“There are two kinds of pledge:

“The pawn.

“The antichresis.” R.C.C. Art. 3134.

"A thing is said to be pawned when a movable thing is given as security; and the antichresis, when the security given consists in immovables. R.C.C. Art. 3135.

“Every lawful obligation may be enforced by the auxiliary obligation of pledge.” R.C.C. Art. 3136.

“It is essential to the contract of pledge that the creditor be put in possession of the thing given to him in pledge, and consequently that actual delivery of it be made to him, unless he has possession of it already by some other right.” R.C.C. Art. 3152.

“The antichresis shall be reduced to writing.

“The creditor acquires by this contract the right of reaping the fruits or other revenues of the immovables to him given in pledge, on condition of deducting annually their proceeds from the interest, if any be due him, and afterwards from the principal of his debt.” R.C.C. Art. 3176.

“The creditor is bound, unless the contrary be agreed on, to pay the taxes, as well as the annual charges of the property which have been given to him in pledge.

“He is likewise boupd, under penalty of damages, to provide for the keeping and useful and necessary repairs of the pledged estate, saving- himself the right" of levying on their fruits and revenues all the ■ expenses respecting such charges.” R.C.C. Art. 3177.

“The debtor can not, before the full payment of the debt, claim the enjoyment of the immovables which he has given in pledge. But the creditor who wishes to free himself from the obligations mentioned in the preceding articles, may always, unless he has renounced this right, compel the debtor to retake the enjoyment of his immovable.” R.C.C. Art. 3178.

“The creditor does not become owner of the pledged immovable by failure of payment at the stated time; any clause to the cdntrary is null, and in this case itsis only lawful for him to sue his debtor before the court in order to obtain a sentence against him, and to cause the objects which have been put in his hands in pledge to be seized and sold." R.C.C. Art. 3179.

“When the parties have agreed that the fruits or revenues shall be compensated with the interest, either in whole or only to a certain amount, this covenant is performed as every other which is not prohibited by law.” R.C.C. Art. 3180.

“Every provision, which is contained in the present title with respect to the antichresis, can not prejudice the rights which third persons may have on the immovable, given in pledge by way of antichresis, such as a privilege or mortgage.

“The creditor, who is in possession by way of antichresis can not have any right of preference on the other creditors; but if he has by any other title, some privilege or mortgage lawfully established or preserved thereon, he will come in his rank as any other creditor.” R.C.C. Art. 3181.

It is very clear that the stipulation above referred to in the instrument of February 14, 1923, intended to create, and did create, the act of sale an antichresis, the pledge of an immovable. It was reduced to writing. Possession was delivered to the pledgee. It was a pledge to secure a pre-existing “debt on said described property”, in principal and interest, which'was set out in the act of sale from Harang to Acosta of January 9th, 1920.

(6) In Maestri v. Board of Assessors, 110 La. 517, 522, 34 So. 658, 660, it was held that, under Article 3176 of the Revised Civil Code, it is necessary in a contract of antichresis “that there should be a pre-existing debt, at the time the contract is entered into." But in the more recent case of Conklin v. Caffall, 189 La. 301, 179 So. 434, it is said, (page 438) in discussing the Maestri Case:

“It is not necessary in this case to go so far as to say that a pre-existing debt is essential to the contract of antichresis.

“It is sufficient to say that, as an antichresis is only an ancillary contract, it must have a debt or principal obligation to support it — whether the obligation be a pre-existing one or be incurred in the making of the antichresis."

As also said in Conklin v. Caffall, supra:

“As the relation of debtor and creditor, between the parties to the contract, is essential to a contract of antichresis, the evidence of that relation must be in writing.”

In the case at bar, there was “a pre-existing debt”, the five mortgage notes - on the property aggregating the sum of $3750.00, evidenced by the Act of Sale from Acosta to Harang of date January 9, 1920. Not only was Acosta the owner of the property; not only did he deliver possession of the property to Harang; not only was Acosta the debtor and Harang the creditor, but “the evidence of that relation” is “in writing”.

(7) No technical form in the confection of the contract of antichresis is required in this State.

In Calderwood v. Calderwood, 23 La.Ann. 658, John Calderwood made a contract in the form of a sale with his brother, Williani Calderwood, in reference to certain stores and other property in Monroe, La., and at the same time, a counter letter was executed, and signed by them. In that case the Court said:

“The idea of a sale is utterly precluded if effect be given to that clause of the counter letter which says: ‘Whereas, John Calderwood is indebted unto William Calderwood in' the sum of twenty-four hundred and seventy dollars in United States treasury notes for services. Now, therefore, the aforesaid sale and transfer is made to secure and giiarantee the payment of said sum of money.’ ” Page 660.

“William Calderwood holds the property, which is immovable, by a contract of pledge, disguised, however, under the form of a sale. It is an antichresis by which contract he acquires — ‘the right of reaping the fruits or other revenues of the immovables to him given in pledge on condition of deducting annually their proceeds from the interest, if any be due him, and after-wards from the principal of his debt.’ Revised Civil Code, Article 3176.” Pages 661, 662 (Italics ours.)

On rehearing, it is said by the Court:

“Persons are presumed to contract in reference to the law. The pledge of a movable is a pawn, the pledge of an im-. movable is an antichresis. ■ R.C.C. art. 3135.

« * * * * * *

“The contract being a pledge of immovables, is regulated by this article [R.C.C. art. 3176], in the absence of the stipulation or covenant permitted by article 3180. The law regulates the effect of a contract except in such cases as the same may be modified by the covenant of the parties under the law permitting the said modification. The parties have not modified the antichresis in the case before us by a covenant under article 3180, and we therefore conclude that it must be regulated by article 3176.”

In other words, it is held in Calderwood v. Calderwood, 23 La.Ann. 658, where it is agreed that a sale and transfer of an immovable is made to secure the payment of a debt, that the contract is a pledge of an immovable and an antichresis, and that Article 3176 of the Revised Civil Code is read into such a contract.

In Wolf v. Wolf, 12 La.Ann. 529, this Court said:

“Neither does it follow, because parties have clothed their contract in one form instead of another, that it will not avail in either. There is no penalty declared by the law-giver, and the courts cannot supply it. Then is there anything immoral in using the contract of sale as the security of money advanced or to be advanced in good faith? We think not. The Civil Code has itself traced certain provisions of law in regard to sales with the power of redemption.”

In Ware & Son v. Morris, 23 La.Ann. 665, the defendant conveyed to plaintiff, in the form of a sale, certain property, and a counter-letter was drawn and signed by the parties. It is. said in that case in part:

“No doubt it is lawful to secure a debt under an apparent act of sale, but it is nevertheless a pledge or hypothecary right which really subsists between the parties, concealed, however, behind the false appearance of the contract of sale. In such a case the title never passes; the real contract may be a pledge or mortgage — the apparent one a sale. * * *

“The character of the contract in this case is easily determined from the counter letter, where the real purpose of the parties is expressed. Between the parties the counter letter is as operative as if its recitals and stipulations had been expressed in the notarial act. We apprehend that if such had been done this suit never would have been instituted; the purpose and object of the contract would have been too apparent.”

In Livingston v. Story, 11 Pet. 351, 9 L.Ed. 746, it is said by the Supreme Court of the United States (page 386):

"For although thet conveyance of the 25th of July, 1822, is, in form, a positive sale, yet the counter letter explains its nature as fully as if it were inserted in that conveyance.”

In the case at bar, instead of the nature of the contract of sale being stated in a separate counter letter, it is stated in the contract of sale itself as follows:

“Appearers hereby declare by these presents, that this sale is made to secure a debt on said described property and that no Revenue Stamps are to be attached.”

Necessarily, this declaration in the act of sale itself has as much effect as if it had been made in a separate counter-letter; since “Between the parties the counter letter is as operative as if its recitals and stipulations had been expressed in the notarial act.”

(8) Nor is the contract of antichresis in this case affected by the fact that Harang, in whose favor the contract is made, also had a previous mortgage on the same property.

It is expressly provided in Article 3181 of the Revised Civil Code that:

“Every provision, which is contained in the present title with respect to antichresis, 'can hot prejudice the rights which third persons may have on the immovable, given in pledge by way of antichresis, such as a privilege or mortgage.

“The creditor, who is in possession by way of antichresis can not have any right of preference on [over] the other creditors; but if he has by any other title, some privilege. or mortgage lawfully established or preserved thereon, he will come in his rank as any other creditor.”

Article 3181 of the Revised Civil Code, above cited, specifically recognises the right of a creditor in possession of an immovable, under an antichresis, to have, at the same time, a mortgage on the same property, and provides that “he will come in his rank as any other creditor.” ,

Harang, on January 9th, 1920, sold the property in dispute in this case to Acosta, and having retained a special mortgage on the property to secure the unpaid balance of the purchase price of $3750. On February 14, 1923, this mortgaged property was sold by Acosta to Harang “to secure the debt on said described property”, thereby creating the pledge of an immovable, or what is known as an antichresis.

In the very teeth of Article 31$1 of the Revised Civil Code permitting a creditor with an antichresis to have a mortgage on the same property, the argument of defendants, that it is inconsistent to have a co-existing antichresis with a mortgage on the same property, has not the slightest merit and falls of its own weight, unless, indeed, ' it be inconsistent for a creditor to exercise the plain legal rights expressly granted to him under the Civil Code of this State.

The mortgage gave to Harang only the right to foreclose on this property and to have same sold at public sale for the payment of the debt. Under the mortgage, Harang had no right to possession of the immovable, and no right to reap the fruits or other revenues of.the immovable given, to him in pledge, and to deduct annually from the interest and afterwards from the principal of his debt. This right was secured to him only under the antichresis. R.C.C. Art. 3176.

Instead of foreclosing on the property, Harang exercised the right given to him under the antichresis, took possession of the property, under the act of antichresis of date February 14,. 1923, received the fruits dr revenues from same during his lifetime, and his heirs, after his death, continued to possess the property and to exercise the same rights.

(9) In Payne v. Joe and Jack Habbard, 42 La.Ann. 395, 7 So. 572, the court said:

“The plaintiff held a mortgage on the Hermitage plantation, the property of defendants, and proceeded to foreclose the same. While the property was under seizure, and about to be sold, an agreement was entered into between plaintiff and defendants, by which the latter gained two years’ time, in annual installments, to pay the mortgage debt.

“The contract was made in the form of a sale a réméré. The defendants leased the property conveyed to plaintiff by them. The plaintiff also agreed tjo furnish defendants supplies for the year. The defendants failing to pay for the supplies and the rent, the plaintiff proceeded against them by writs of sequestration, provisional seizure, and attachment.

“The defendants deny plaintiff’s right to sue for the rent, as he is not the owner of the Hermitage plantation. [Italics ours.]

“They contend that the contract entered into by them with plaintiff was not a sale of said plantation with the right of redemption, but a pignorative contract; by which the plantation was conveyed to plaintiff as security for a mortgage debt. He also prayed that if the sale should be considered one of á réméré, that it be declared null and void for lesion.”

It is further stated in the opinion in this case:

“The creditor took possession of the property as a pledge for a debt due him. He immediately leased it to the debtor, and thus reaped the revenues of the thing given to him in pledge.

. “He 'Could not become the owner on failure of defendants to make the first payment, and the clause to this effect in the contract is a nullity. He has the right, however, to have the pledged immovable, the Hermitage plantation, seized, and sold to pay his debt. R.C.C. art. 3179.” (Italics ours.)

On application for rehearing, the Court' said:

“Plaintiff and appellant complains that our decree maintains the contract between him and defendants as an antichresis secur ing a mortgage debt of the latter to him of $1,354.50; whereas, it should have been stated that the sum bore 8 per cent, per annum interest from the date of the contract, February 21, 1888.

“The applicant has misconstrued our decree. It explicitly stated that the contract of pledge did not, in any respect, modify the previous act of mortgage. It was left in force, and plaintiff was permitted to select which of the two — the act of pledge or the mortgage — he would proceed to enforce. Both are valid and binding as securities for the payment of one and the same debt. He must look to and rely upon those acts for ascertainment of the extent of his rights and the amount of his debt and its interest." (Italics ours.)

So in the case at bar, the contract of pledge, or antichresis, did not modify the previous act of mortgage in favor of Harang, who was permitted to select which of the two he would proceed to enforce. Both were valid and binding as securities “for the payment of one and the same debt".

This Court has even held that:

“A mortgage in favor of one creditor, not put into action by fieri facias or writ of seizure, may co-exist with an antichresis in favor of another creditor. The antichresis operates upon the fruits, which the creditor, holding it, is thereby authorized, by his debtor to gather. A mortgage affects the land. If the holder of the antichresis gathers the fruits before the mortgage creditor seizes, he can apply them to his debt.” Pickersgill & Co. v. Brown, 7 La.Ann. 297, 314. (Italics ours.)

(10) It is specifically provided in Article 3179 of the Revised Civil Code that:

“The creditor does not become owner of the pledged immovable by failure of payment at the stated time; any clause to the contrary is null, and in this case it is only lawful for him to sue his debtor before the court in order to obtain a sentence against him, and to cause the objects which have been put in his hands in pledge to be seised and sold."

It is the settled jurisprudence of this court that the contract of antichresis, being pignorative in its nature, does not vest title in the creditor in case of failure to pay, when the property is to be sold by judicial sentence, and the sum which it may’' bring, over the amount for which it is pledged, is to be paid to the person making the pledge, Calderwood v. Calderwood, 23 La.Ann. 658, 662; Ware & Son v. Morris, 23 La.Ann. 665, Payne v. Habbard, 42 La.Ann. 395; see also Livingston v. Story, 11 Pet. 351, 9 L.Ed. 746.

It is not pretended that Harang, in whose' favor the antichresis was created, has, or that defendants, his heirs, have, at any time, applied to the District Court for the Parish of Lafourche, in which the immovable pledged is situated, to have this property seized and sold by judicial sentence. Nor is it pretended that Harang has, or that his heirs have, at any time, foreclosed his previous mortgage on this property, and purchased the property at public sale.

The antichresis is of date February 14, 1923. Acosta did not die until September 23, 1934, or eleven years and seven months later, but there is no evidence in the record to show that the heirs of Harang, at anytime during these eleven years and seven months, claimed that this was a cash sale, and made any demand upon Acosta to re-transfer this property to them.

Conceding that Acosta, the debtor, “failed of payment at the stated time”, Harang, the creditor, did not thereby become the owner of the pledged immovable, and, if “any clause to the contrary” had been placed in the act of sale of this property as security for the payment of the previous mortgage debt, such clause would have been absolutely “null”, void and of no legal effect whatever, under Article 3179 of the Civil Code, a prohibitory law, and under the settled jurisprudence of this court.

The mere fact that, in this case, Harang cancelled the mortgage notes on the pledged immovable, did not have the legal effect of transferring to him the ownership of this property.

It was the plain legal duty of Harang, in possession of the pledged immovable, under an antichresis to pay the taxes on this property. R.C.C. art. 3177. Neither the payment of these taxes, nor the fact that Harang caused the property to be assessed in his name, resulted in any title in him, the creditor, for "it is only lawful for him to sue his debtor before the court to obtain a sentence against Kim, and to cause the objects which have been put in his hands in pledge to be seized and sold.” Article 3179.

The fact that Harang and his heirs have been in possession of this property since February 14, 1923, does not vest in him, or in them, the title, for the plain reason that such possession is not as owner under a title translative of property. Besides, “It is essential to the contract of pledge that the creditor be put in possession of the thing given him in .pledge, and consequently that actual delivery of it be made to him, unless he has possession of it already by some other right.” Article 3152.

In this case, we are not dealing with a cash sale, by any means, but with a plain, unambiguous pledge of an immovable as security for the payment of a pre-existing mortgage indebtedness, an antichresis. The title to the property in dispute was in Acosta on February 14, 1923, when the contract of antichresis was entered into by him in favor of Harang, his creditor. That title continued, in Acosta up to the time of his death, September 23, 1934, upon the public records of the Parish of Lafourche, and, at his death, one-half interest in this property was inherited by his heirs, and the other half interest became vested in his surviving widow in community, the plaintiffs in this case. The title to this property was still in the surviving widow in community and in the heirs of Olivanne Acosta, deceased, when they conveyed an undivided one-half interest in and to the same to their co-plaintiff, James J. Tracy: The transfer was made January 30, 1937, by notarial act which was recorded February 1st, 1937, in Conveyance Book No. 79, folio 400, Entry 33890, in the Conveyance Records of the Parish of Lafourche, Louisiana. T. 25, 26, 27, 28.

In other words, the title of Olivanne Acosta had remained on the public records of Lafourche Parish in his name from the date of the sale made to him by Dominique Harang, January 9, 1923, to February 1st, 1937, during a period of 14 years, without being questioned or changed in any particular.

(11) On the trial of this case, defendants placed upon the witness stand a single witness, A. L. Deramee, Notary Public of Lafourche Parish, before whom the act of sale constituting the antichresis in this case was passed on February 14th, 1923.

It was proposed by defendants to prove by this witness the verbal statements of both Olivanne Acosta and Dominique Harang, made prior to the drafting of the contract, and to substitute- such statements, contrary to the terms of the written contract, as evidencing the mutual understanding and agreement which the contracting parties desired the Notary to prepare and execute.

The verbal statements of Olivanne Acosta and Dominique Harang, both deceased, which the Notary proposed to testify to are as follows;

(1) That -the contracting parties had 'agreed to a sale and transfer of title of said property by Olivanne Acosta in consideration of the cancellation of Olivanne Acosta’s unpaid promissory notes, amounting in principal and interest to $3750.00.

(2) That the Notary then drew up an act of cash sale, and, after completing the drafting of the instrument, a question arose as to revenue stamps. That the Notary advised the parties that he could insert a clause in the already completed instrument without changing the legal effect of the instrument and then wrote in the contract the following, to-wit:

“Appearers hereby declare by these presents that this sale and transfer is made to secure a debt on said described property and that no revenue stamps are to be attached hereto.”

The proposed testimony of the Notary was objected to by counsel for plaintiffs, “Because the evidence has for its purpose the constituting of Dominick Harang, the proprietor of the property and not the pledgee of the same, of vesting in him an absolute title of property, all in violation of the laws of the State of Louisiana.”

The testimony of the Notary was admitted over the objection of counsel for plaintiffs, and the ruling of the trial court, in our opinion, is clearly erroneous.

In Calderwood v. Calderwood, 23 La.Ann. 658, John Calderwood made a contract in the form of a sale with his brother, William Calderwood, in reference to certain stores and other property in Monroe, La., and, at the same time, a counter letter was executed and signed by them, containing the following clause:

“Whereas, John Calderwood is indebted unto William Calderwood in the sum of twenty-four hundred and seventy dollars in United States treasury notes for services. Now, therefore, the aforesaid sale and transfer is made to secure and guarantee the payment of sañd sum of money.”

The executrix and universal legatee of John Calderwood alleged in that case, as is alleged in the case at bar: that by the rents derived from the property,'William Calderwood had received largely more than the amount for which the property was given in pledge, and sued to compel the retransfer of the property according to the stipulation of the counter letter.

In the opinion in the Calderwood Case it is said:

“The defendant, William Calderwood, denies that the contract was a pledge, but contends it wens a sale, with the right of redemption — a vente d réméré; that as owner the fruits or revenues belong to him, and he is not bound to reconvey the property until the repayment of the twenty-fqur hundred and seventy dollars as stipulated, which the plaintiff has failed to tender.

“Hf sought by parol evidence to prove that this was the intention of the parties, and the court very properly rejected the evidence of the witnesses. Parol evidence will not be admitted against or beyond what is contained in the acts, nor on what may have been said before or at the time of making them or since. C.C. art. -2256.” Page 659.

“If the contract be a sale what is the use of talking about securing a subsisting debt of $2470? That being paid as part of the price, ceased to be a debt; by the sale the obligation would be discharged, which the sole purpose of the counter letter, it seems was to preserve and to secure.

“Looking to the instrument wherein the parties have reposed their true intention and object, we say there was neither an intention to buy nor to sell, but rather to disguise the contract of pledge under the false appearance of the contract of sale: It is the real, not the apparent, contract which is sought to be enforced and which should be enforced." Page 661. (Italics ours.)

So, in the instant case, if the contract was a cash iw/e/what is the use of talking about securing the balance of the purchase price of $3,750? By the cash sale this indebtedness would be discharged, although the sole purpose of the sale was to preserve and secure this indebtedness by the pledge of the immovable upon which it existed as a security.

It is clear, therefore, that the purpose of the parol evidence in this case was to prove title to real estate, when no title whatever existed in Harang, the mere pledgee by way of antichresis. Of course, this cannot be done, or permitted in this case.

Besides, the verbal statements upon which the parol evidence is based are the statements of Acosta and Harang, the contracting parties, made prior to the drafting of the act. Both of these parties are dead.

In the recent case of John W. Foscue et al. v. Minnie A. Mitchell et al., 182 So. 740, this Court had occasion to observe that “courts of justice lend a very unwilling ear to statements of what dead men had said". The Notary who drafted the Act of Antichresis between Acosta and Harang of date February 14, 1923, had served under a notary’s commission for 14 years. He testified that he knew the meaning of the word “Security” and, undoubtedly, he knew the meaning of the word “Paid”; yet the Notary testified in this case that he made an error in writing the word “security” in the act of antichresis, and intended to write the word "paid”. The words are so dissimilar in spelling and in meaning, and in appearance, that this Court is not impressed by such testimony.

(12) We now pass to a discussion of the instrument of October 30, 1936 which was recorded February 12, 1937, after the sale to James J. Tracey of an undivided one-half interest in this property by plaintiffs had been recorded February 1st, 1937. This instrument is as follows:

“State of Louisiana

“This declaration is made freely and voluntarily on this 30th day of October, A. D. 1936, by Mrs. Emma Gautreaux, widow of Olivanne Acosta, Mrs. Octavie Acosta, wife of Paul Parr, Mrs. Ida Acosta, wife of Albert Trosclair, Mrs. Valerie Acosta, wife of Abel LeBlanc, Mrs. Bella Acosta, wife of Alcest Savoie, Mrs. Linda Acosta, wife of Fedless Schouest, Mrs. Helen Acosta, wife of Joe Chamenta, Abel Acosta and Lonia Acosta, are those who execute this instrument.

“Witnesseth:

“That whereas, by act before A. L. Demaree, a Notary Public, under date of February 14, 1923, their late husband and father Olivanne Acosta sold, conveyed, assigned, set over and delivered unto Dominique Harang, husband of Mrs. Emily Hebert the following described property, to-wit:

“A certain tract of land situated in the Parish of Lafourche, State of Louisiana, on the left descending bank of Bayou Lafourche, at about twenty-eight (28) miles below the town of Thibodeaux, and measuring one and one half (1½) arpents, by the ordinary depth of forty (40) arpents,' between parallel lines; bounded above by lands of Abel LeBlanc, and below by lands of Igniasse Plaisance

“That, whereas, the said act of conveyance, mentioned was a price of Thirty seven hundred and fifty ($3750.00) Dollars cash:

“That, whereas, the said act of conveyance would possibly imply that instead of a cash transfer this conveyance was to secure a debt, that actually in truth and in fact the said Olivanne Acosta, did sell, convey, transfer, set over, and deliver unto Dominique Haratng the hereindescribed property for the consideration of Thirty seven hundred and fifty and no/100 ($3750.00) dollars, that the aforedescribed deed before A. E. Demaree bearing the date of February 14th, 1923, is none other than an actual sale and transfer and at no time was intended to be a conveyance in order to secure a debt, and

“Mrs. Anna Gautreaux, widow of Olivanne Acosta, Mrs. Octavie Acosta, wife of Paul Parr, Mrs. Ida Acosta, wife of Albert Trosclair, Mrs. Valerie Acosta, wife of Abel LeBlanc, Mrs. Bella Acosta, wife of Alcest Savoie, Mrs. Linda Acosta, wife of Fedless Schouest, Mrs. Helen Acosta, wife of Joe Chamenta, Abel Acosta and Lonia Acosta are those who execute this instrument now declare that they have no rights, titles or interest or pretensions whatever in and to the aforesaid described property and they do now declare that they quit claim, set over and deliver, whatever rights, titles or interest, if any they have, in the aforesaid land, but do hereby declare that they have no rights titles or interest whatever therein.”

We have already held in this case that the Act of Sale of February 14, 1923, as security for the payment of the mortgage debt of $3750 on this property was not a cash sale, but' the pledge of an immovable, or an antichresis. We have already decided that, under Article 3179 of the Revised Civil Code, Harang, the creditor, did not become the owner of the pledged immovable by the failure of Acosta to make payment of the mortgage notes at the time stated in these notes, and that any clause to the contrary would have been null and void and of no legal effect. That the only lawful right that Harang, as creditor, had under the antichresis was to sue Acosta in court, obtain a judicial sentence against him, and cause 'the immovable put in his hands as a pledge by Acosta to be seized and sold.

Neither the heirs of Acosta, nor the heirs of Harang, inherited from decedents any greater rights than the decedents themselves possessed under Article 3179 of the Revised Civil Code, a prohibitory law.

It follows, necessarily, that the heirs of Acosta were without any legal right or authority, standing as they do in the shoes of their deceased father, to declare the contract of antichresis in this case not to be a security for a debt, but a cash sale, thereby vesting in the heirs of Harang an absolute title; nor do the heirs of Harang, in the face of a prohibitory law, have any legal right or authority to accept such sale.

The character of the • contract of antichresis was not changed by the death of either Acosta or Harang, but decedents transmitted to their heirs the same rights and obligations which they possessed and by which they were bound.

“Individuals can not by their conventions, derogate from the force of laws made for the preservation of public order or good morals.” R.C.C. Art. 11.

“Whatever is done in contravention of a prohibitory law is void, although the nullity be not formally directed.” R.C.C. Art. 12.

In Livingston v. Story, 11 Pet. 351, 9 L.Ed. 746, the Supreme Court of the United States held the original contract with the counter letter to be an antichresis. Thereafter, a new agreement was made, in order to obtain an extension of time, increasing the sum to be paid and declaring that a failure of payment would vest absolute title in the pledgee.

After holding the original sale with counter letter to be an antichresis, the.Supreme Court of the United States said (page 391) :

“Such an instrument as this would have the effect to vest in Fort and Story an absolute title in the property, if it were not positively controlled by the law of Louisiana. We must administer the law as it 'is; and having established that the original transaction was an antichresis, and continued 'so up to the 2d of June, it was not in the power of the parties to give it such a character, as to vest by the act of Livingston an absolute title in Fort and Story.

“ ‘In the language of the Code, 1808, tit. Pledge, art. 28 already cited, the ^creditor 'does not become proprietor of the pledged immovables, by failure of payment at the stated time, any clause to the contrary is null:’ ‘and in this case it is only lawful for him to sue his debtor, before the court, in order to obtain sentence against him, and to cause the objects which have been put into his hands, in pledge, to be seized and sold.’ If such a clause had been inserted in the original agreement, it would have been void. Can it be more valid, because subsequently introduced in a paper having a direct relation to the first contract; and which was intended to alter its character in to something which the law prohibits, when it determines the original contract to be one of pledge? W'e think not. Such an allowance to a creditor would be a precedent, giving to all creditors in cases of pledge the power to defeat the benevolent vigilance of the law, preventing them from becoming proprietors of the debtor’s property, unless by a decree of the court. We think it immaterial whether such covenant be in the original agreement, or in a subsequent instrument. In either case the law is express; the creditor does not become the proprietor by the failure of the debtor to pay; .any clause to the contrary is null.” (Italics ours.)

(13) The demand of defendants for the reformation . of the act of February 14, 1923, by eliminating the “security” clause and thereby making the act a cash sale, is met in this case by a plea of prescription of 10 years liberandi causa under Article 3544 of the Revised Civil Code. This article provides that:

“In general, all personal actions, except those before enumerated, are prescribed by ten years.”

In Louisiana Oil Refining Corporation et al. v. Gandy et al., 168 La. 37, 121 So. 183, this Court held (page 186) :

“In our view an action to reform a deed is a personal action”, and that the' prescription of ten years liberandi causa pleaded under Article 3544 of the Revised Civil Code is applicable.

As to the time when prescription begins to run the Court said: “It will not begin to run until the facts which constitute the fraud or mistake which is the ground for the reformation are discovered or, at any rate, until the time when, by use of due diligence, they ought to have been discovered by the party applying for relief or his privy.”

“The Notary before whom the Act of February 14, 1923, was passed testified that, after the deed was executed, the question arose between Acosta and Harang, the contracting parties, as to the payment of the Revenue Stamps, and that he, the Notary, settled the matter, then and there, by stating that he could legally insert in the act the clause: “This sale is made to secure a debt on said described property and that no revenue stamps are to be attached hereto.”

The answer of defendants, in which they pray for the reformation of the deed, was filed in the lower court on March 27, 1937, or 14 years after Harang knew of the existence of this alleged mistake, and his heirs, as his privies, are bound by this knowledge.

The plea of prescription of 10 years liberandi causa under Article 3544 of the Revised Civil Code is therefore sustained.

(14) The plea of estoppel filed by defendants is without merit, for the widow and heirs of Acosta have pleaded the nullity of the instrument of October 30, 1936, as being in violation of a prohibitory law, in fraud of their rights, and without consideration.

In the case of Kelly v. Kelly, 131 La. 1024, 60 So. 671, this Court said:

“The doctrine of estoppel has no application to conventions which derogate from the force of laws made for the preservation of public order or good morals, and what is done in contravention of a prohibitory law is void, although the nullity be not formally directed.” Citing R.C.C. Arts. 11 and 12.

And certainly there can be no estoppel which is attacked, as is the instrument in the present case.

(15) On January 30, 1937, the widow in community and heirs of Olivanne Acosta sold to James J. Tracy an undivided one-half interest in the property. ‘ This deed was duly recorded in the Parish of Lafourche February 1st, 1937, prior to the deed to defendants by plaintiffs of the property in question, of date October 30, 1936, 'which was not recorded until February 12, 1937.

The effect of act of February 14, 1923 being one of antichresis, and there being nothing of record contradicting its terms at the time of the registering of the act from plaintiffs to James J. Tracy, he acquired, as a third person purchasing upon the faith of the public records, a valid title to the interest in the property conveyed to him by plaintiffs. McDuffie v. Walker, 125 La. 152, 51 So. 100.

It is set out in the deed to Tracy that the plaintiffs “are the owners in indivisión of the following described property situated in the Parish of Lafourche towit: * * * ”. It then provides that: “And Whereas, the said Mrs. Dominique Harang and the heirs of Dominique Harang and four (4) others are claiming the ownership of the aforesaid property with all of its mineral resources and it is necessary that the said parties of the first part should take legal action against said claimants, or any of them, or their assignees, vendees, or any other claimants in order to have vindicated the rights of ownership of said parties of the first part to said property.”

The consideration for the sale is then expressed in the following language:

“And the said parties declare that this transfer is made in consideration of the professional services rendered by the said James J. Tracy, and to be rendered by him in bringing whatever action or actions he may deem necessary or proper in order to secure judgment in favor of said parties of the first part against any and all adverse claimants of said property and in vindication of the rights of the parties of the first part, and in further consideration of the said James J. Tracy paying whatever court costs, charges, expenses, etc. may be nec essary in any suit or suits, claim or claims, etc.”

“And the said parties further declare that the said James J. Tracy shall have the exclusive power and authority to bring any suit for the vindication of the rights of the said parties of the first part and to compromise such suit or suits, claim or claims, in any court or elsewhere, and to compromise any matter out of Court, and to represent said parties of the first part in any action or actions the said James J. Tracy may see fit to institute.”

“It being further understood and agreed to by the parties of the first part that they shall not have the right, without the written consent of the party of the second part, to settle, compromise, release, discontinue, or otherwise dispose of such suit or suits, claim or claims, etc. It being further understood and agreed to by and between all of the parties hereto, that this power of attorney, being coupled with an interest, is irrevocable.”

In the case of McClung et al. v. Atlas Oil Company et al., 148 La. 674, 87 So. 515, there was before the Court a contract by authentic act, by which McClung sold to Huey P. Long an interest in certain property, the consideration in the deed being quite similar to that in the deed from plaintiffs to Tracy. McClung, who was a co-plaintiff with Long, adjusted his own differences, and the question was raised whether notice of the sale from McClung to Long, which set out the employment should not have been served as provided by Act 124 of 1906.

This Court said in that case (page 518) :

“As we read the contract, it was not alone a transfer of an interest in the subject-matter of the contemplated lawsuit, but it was a present conveyance of a fixed undivided interest in such title as McClung then owned in the mineral rights of the property described. The consideration was a real one, i. e., the professional services to be rendered, and when the act was recorded in the conveyance records McClung could not thereafter have sold to any one else the rights in question so as to give them a claim superior to Long’s any more than he could have done in any other conveyance of real property. If Long acquired a title in the property, then he undoubtedly had a standing in court to test the same with others making claim to the same thing. He has a real interest to assert. C.P. art. 15.”

It is apparent, therefore, that Tracy has the same right in the present case.

Tracy did not acquire a litigious right by the conveyance to him of his interest in the property by plaintiffs, as there was no suit pending at the time.

As said by this Court in the McClung Case:

“Leaving out of consideration for the present Act No. 124 of 1906, we will inquire whether or not the interest which Long acquired involved a litigious right within the meaning of the law. . As was said by us in Sanders v. Ditch, 110 La. [884], 899, 34 So. 860 (decided before act of 1906 was passed), there is nothing wrong or immoral in the act itself of conveying a right which is either in the process of litigation or may become litigated, and its illegality arises when and to the extent only which the express law makes it such. In that case, we took occasion to review the codal provisions and jurisprudence on the subject up to that time, and to point out that the Code itself (article 2653) in unequivocal terms defines a litigious right as one about which a suit exists. Until there is a lawsuit actually pending, no right is litigious, no matter how apparently necessary one may be to enforce it. And the term has the same meaning in article 2447, applying to attorneys and court officers, as under article 2652, applying to all other persons, the only difference being that in cases where the first article applies the attempted transfer is null, while under the latter the party against whom the litigious right exists may relieve himself by paying to the purchaser ‘the real price of the transfer, together with the interest from date.’ In the present case, there was no suit pending when Long acquired his interest in the mineral rights; and, while it is true that the consideration which he agreed to give was his professional services in such actions as he might deem necessary to obtain judgment in favor of McClung therefor, yet, even this could not have the effect of supplying the condition which the Code requires, i. e., the pending of a suit. Sanders v. Ditch, supra; Succession of Landry, 116 La. 970, 41 So. 226; Saint v. Martel, 122 La. 93, 47 So. 413.”

Our conclusion is that James J. Tracy, one of the plaintiffs in this suit, has a legal and valid undivided one-half interest in the property involved in this litigation. Being a third person, purchasing upon the faith of the public records, showing that the recorded Act of February 14, 1923 was an antichresis, it is manifest that this act' cannot be reformed in this case, so far' as Tracy is concerned, by eliminating the “security clause” from the act and thereby converting it into a cash sale.

(16) The instrument of October 30, 1936, purports to be a quit-claim deed executed by plaintiffs to defendants, without one cent of consideration, when the property in dispute in this case is alleged to be of the value of $250,000.

Plaintiffs allege that this instrument was procured from them by Warren J. Harang, one of the defendants, and his attorney, and state in paragraph XXIX of the petition : That they “deliberately and purposely withheld 'the real intent and purpose of said instrument of October 30, 1936, suppressed the truth from and falsely represented matters and things to petitioners, solely for the purpose of defrauding petitioners of their valuable property rights.”

The plaintiffs have little or no education. Four of the plaintiffs could not read or write and made their marks to the instrument of October 30, 1936. These plaintiffs are Mrs. Emma Gautreaux Acosta, surviving widow in community of Olivanne Acosta; Mrs. Octavie Acosta Parr; Mrs. Valerie Acosta LeBlanc; and Mrs. Linda Schouest, heirs of Olivanne Acosta. T. 17 and 18. Plaintiffs have had no experience in business transactions. They are all humble French citizens of the State. They were not present when the Act of February 14, 1923, was passed. They knew nothing about it creating an antichresis. They were ignorant of the rights of Olivanne Acosta under the act. They did not know that the title in the property vested in him and remained in him during his lifetime and was transmitted to plaintiffs as his widow and heirs. They signed the instrument of October 30, 1936 before they had consulted any attorney as to their legal rights. Neither of the agents of defendant explained to them their legal rights under the antichresis. These agents did not inform plaintiffs that they would be divested by the signing of the instrument of October 30, 1936 of any property rights. They did not advise plaintiffs that the elimination of the security clause from the Act of Antichresis would strip them of their title to the property and would create an act of cash sale, vesting an absolute title in Dominique Harang, as vendee.

On the contrary, the agents of defendants, as testified to by plaintiffs, represented to them that they merely wanted plaintiffs to correct “a little error” in the act of February 14, 1923, as to the word “security”, which A. L. Deramee, Notary, had inserted into the act, while he was under the influence of liquor, or had been drinking too much. This statement was utterly false. There is not one jot or tittle of evidence in the record to show that A. L. Deramee, the Notary, had been drinking at all when the “security clause” was written into' the contract of antichresis.

This statement was made to plaintiffs by the agents of defendant for no other purpose than to impress plaintiffs with the idea that this was a trivial error, of no importance whatever, and had no proper place in the act. This was also a grave falsity.

These agents were very careful to ask plaintiffs if their father had turned the property back to Harang because he could not pay for it. The plaintiffs answered that they so understood, but that Harang had agreed to let their father take back the property at any time he was able to pay the debt.

This question, without doubt, was asked plaintiffs by the agents of defendants to impress plaintiffs with the idea that they had no right or title to, or interest in, this property.

The attorney for defendant, Warren J. Harang, however, well knew, at the time, that Acosta was prohibited by law from delivering the property to Harang, creditor and pledgee, because of Acosta’s failure to pay the debt when it fell due. The Attorney for Warren J. Harang, one of the defendants, further knew, at the time, that Harang, the creditor and pledgee, was prohibited by law from receiving this property in payment of the debt; and that the only lawful way in which Harang could obtain a legal and valid title to the property, was to sue Acosta, the debtor and pledgor, obtain a judicial sentence against him, and have the pledged immovable seized and sold, and buy it in at the sale. R.C.C. Art. 3179.

The false statements made to plaintiffs by the agents of defendants, and their suppression of the truth as to the legal rights of plaintiffs under the Act of Antichresis, and their concealment as to the real purpose of the instrument, constitute, in our opinion, such fraud and deception as to strike with nullity the instrument of October 30, 1936.

The plaintiffs all testify that they would not have signed this instrument had they been advised, or had they known, that their property rights were being divested thereby.

The testimony of Warren Harang, one of the defendants, shows that this property was rented to Abel LeBlanc for the year 1923, the same year the antichresis was created. The date of the antichresis is February 14, 1923. It further shows that Dominique Harang, the father of defendant, died in about six months afterwards; that his last will was probated; that the Hibernia Bank & Trust Company of New Orleans was named executor; that the Bank had possession of this and other property belonging to the Estate of Dominique Harang and administered the same for 10 years, before the heirs were placed in possession in the year 1933.

The testimony of Warren Harang also shows that the pledged property was cultivated in cane, corn, etc., in 1923, 1924, 1925, 1926, 1927, 1928, 1929, 1930, 1931, 1932, 1933, 1934, 1935 and 1936; and, beginning with 1927, “the new variety cane” was used in planting this place.

Yet this witness would have this Court believe that only enough cane was produced on this 60 acre tract during each of these fourteen years “to pay the taxes” each year, and that he barely eked out a living. We do not find it possible to accept such testimony.

Warren Harang is one of the defendants, and a son of Dominique Harang, who died at the age of 76 years. Defendant testified that for a number of years before the death of his father, he managed for him several sugar plantations, but that no separate account was kept as to the indebtedness of the 60 acre tract in dispute, and that his father kept no such account during his life time.

Considering the fact that defendant testified that his father was a good business man and was careful in his business transactions, this is a most remarkable statement.

Not a single account in Globo was offered in evidence to corroborate the testimony of this witness, for a single year between 1923, when the Act of Antichresis was entered into between Acosta and Harang, and the year 1936, the last year in which the witness testified that a crop of cane was raised on this property.

It is incredible that any sugar planter operating each year several sugar plantations would keep his accounts in such a loose manner or not to be able to show the expense of operation, the losses, the profits, or the indebtedness of each plantation which he owned and operated each year. Such testimony has been designedly given, in .our opinion, by this witness, who is the principal in the fraudulent attempt to procure the quit-claim deed for defendants in this case. '

The purpose of this testimony is, without doubt, to debar plaintiffs from taking possession of this property by proof of the discharge of the debt for which the antichresis was given as security in this case.

Article 3168 of the- Revised Civil Code declares that:

“The fruits of the pledge are deemed to make a part of it, and therefore they remain, like the pledge, in the hands of the creditor; but he can not appropriate them to his own use; he is bound, on the contrary, to give an account of them to the debtor, or to deduct them from what may be due to him”

Defendants have neither given an ac-' count to the plaintiffs, the heirs of the debtor, nor have they deducted the fruits of the pledge from what may be due them.

Under the facts and circumstances of this particular case, we feel fully justified in presuming that the rents and revenues received from this property during fourteen years by defendants, the heirs of the pledgee, have been sufficient to discharge the principal and interest of the debt secured by the pledge of the immovable, and in holding that plaintiffs are the true and lawful owners, and are entitled to the possession of the pledged immovable, free of the pledge and antichresis.

It would be the very height of injustice in this case to hold, with the state of facts before us, that although plaintiffs are the true and lawful owners of this property, yet they are to be perpetually debarred from possession of same, because of the violation of their legal duty by defendants to account to plaintiffs for the rents and revenues, or to deduct them from the interest and principal of the debt.

Defendants cannot be permitted in this case to profit by the violation of their legal duty to plaintiffs, and by their laches to deprive plaintiffs of their right to the possession of the immovable in dispute. To hold otherwise would be, in effect, to vest the title to this property in the heirs of the pledgee, in violation of a prohibitory law of- this State. R.C.C. Art. 3179.

In the lower court, judgment was rendered in favor of defendants, rejecting the demands of plaintiffs and dismissing plaintiffs’ suit at their costs. From this judgment plaintiffs have appealed.

For the reasons assigned, the judgment appealed from is annulled and reversed.

It is now ordered, adjudged and decreed that there be judgment in favor of plaintiffs, Mrs. Emma Gautreaux, widow in community of Olivanne Acosta; Mrs. Octavie Acosta, wife of Paul Parr; Mrs. Ida Acosta, wife of Albert Trosclair; Mrs. Valerie Acosta, wife of Abel LeBlanc; Mrs. Bella Acosta, wife of Alcest Savoie; Mrs. Linda Acosta, wife of Fred Schou'est; Mrs. Helen Acosta, wife of Joseph Chimenta; Lonia Acosta; Abel Acosta, heirs of Olivanne Acosta; and in favor of James J. Tracy, and against defendants, Mrs. Emelie Hebert, widow in community of Dominique Harang; Mrs. Ali'ce May Harang, wife of Dr. Joseph S. He bert; Edmund Louis Harang; Stella E. Harang, wife of Thomas W. Collins; and, Warren J. Harang, the heirs of Dominique Harang, decreeing act of February 14, 1923, passed before A. L. Deramee, Notary Public, for the Parish of Lafourche, La., and recorded February 16, 1923, in Conveyance Book No. 54, folio 137, Entry No. 8016, of said Parish, to be an Act of Antichresis; and decreeing the instrument of October 30, 1936, signed by plaintiffs, the widow in community and the heirs of Olivanne- Acosta, and recorded in Conveyance Book No. 79, folio 478, Entry No. 34051 in the Parish of Lafourche, La., to be null and void, and ordering the inscription of same erased from .the records of the Parish of Lafourche, La.

It is further ordered, adjudged and decreed that there be judgment in favor of petitioners and against defendants decreeing petitioners to be the true and lawful owners, in the following proportions: James J. Tracy, an undivided one-half; Mrs. Emma Gautreaux Acosta, an undivided one-fourth; and Mrs. Octavie Acosta, wife of Paul Parr; Mrs. Ida Acosta, wife of Albert Trosclair; Mrs. Valerie Acosta, wife of Abel LeBlanc; Mrs. Bella Acosta, wife of Alcest Savoie; Mrs. Linda Acosta, wife of Fred Schouest; Mrs. Helen Acosta, wife of Joseph Chimenta. Lonia Acosta, and Abel Acosta, an undivided one-thirty-second each, in and to the following described property to-wit:

A certain tract of land, situated in the Parish of Lafourche, State of Louisiana, about twenty-eight miles below the Town of Thibodaux, measuring one and one-half arpents in width on said Bayou Lafourche, by a depth of forty arpents; bounded above by property of Abel LeBlanc, and below by property of Igniasse Plaisance.

It is further ordered, adjudged and decreed that the possession of above described property be restored to petitioners, free of said pledge and antichresis.

It is further ordered, adjudged, and decreed that the right of petitioners to institute any suit or take any action to which in law or in equity they may be entitled, as against any and all parties claiming any adverse rights to or in said property, or to the minerals thereto belonging, whether said adverse claimants be by contract, sale, lease or otherwise, be reserved; and that defendants pay all costs of this suit.

O’NIELL, C. J., having been absent during the argument, does not take part. ODOM, J., dissents. PONDER, J., dissents and hands down reasons.