Strawbridge, J.,
delivered the opinion of the court.
The history of this suit, which has been one' of much interest in the community where the parties resided, and of great excitement between themselves, is this : On the 18th of March, 1825, the plaintiff, by authentic act, passed before the judge of the parish, bargained and sold to the defendant twenty-four slaves, the consideration for which was seven thousand nine hundred and twenty-two dollars, payable “ as follows: one thousand nine hundred and twenty-two dollars, in hand, being a debt which Patterson owed her, and which she releases and discharges; two thousand dollars on the 1st March, 1826 ; two thousand, 1st March, 1827; and the remaining two thousand, on the 1st March, 1828; for which said instalments the said Mrs. R. Bonner has given her three promissory notes, bearing even date with these presents, &c.”
On the same paper is the following “ Memorandum : It is agreed, that the said Thomas Patterson shall have the privilege of redeeming the negroes mentioned within, at any [231]*231time within three years after the last instalment mentioned within shall have been paid, by repaying the price, as expressed within, to the said Mrs. Rosanna Bonner, her heirs or assigns, with interest on the same at ten per cent, per annum from the time such payments shall have been made till such redemption shall take place.”
On the 27th day of March, 1827, Mrs. Bonner instituted suit against Patterson, claiming from him the slaves, with their profits, they having remained in his possession, and requiring a sequestration, on the ground that she feared their removal from the state. Patterson contested this claim; the cause was tried, and judgment being rendered against him, in November, 1827, for the slaves and their profits, at the rate of one thousand and twenty dollars per annum, a writ of possession was issued, under which they were delivered to'her on the 14th February, 1828.
On the 7th of February, 1834, a fieri facias issued on the judgment, for the sum of one thousand nine hundred and forty-five dollars, being the hire or profits of the slaves from 18lh March, 1826, to 14th February, 1828, under which a tract of land was seized and advertised. Hereupon, Patterson commenced the present suit, in which he declares that this conveyance was made “ to secure to her a certain sum of money;” “ that it was expressly understood between them, at the time of making said instrument, that he was to have the services of said negroes, in order to enable him to pay the amount due her; and that, in pursuance of this understanding, they were left with him for nearly three years.”
“ That, after she thus obtained possession, it was agreed between them that interest should not run on the amount due her, and that the services of the slaves were more than equivalent to the interest;” “ that he had made her a tender of the amount due her, which she refused to receive, or to deliver the slaves to him ;” “ that the services of the slaves were worth three thousand dollars per annum, which, in the six years and two months she held them, amounted to eighteen thousand and five hundred dollars, which is due him.”
[232]*232He further sets forth, “ that, under the judgment already spoken of (which he calls a pretended one, which the said Rosanna Bonner subsequently told him was not just and right, and that she would never claim it), execution has issued, against which he prayed an injunction, as also judgment for his eighteen thousand and five hundred dollars, after deducting the amount due to her under the agreement.” The injunction was issued.
The defendant appeared, and, for answer, showed :
1st. That the suit has been prematurely commenced; that no legal tender or demand had been made.
2d. That the right of redemption never existed, but, if it had, the time for exercising it had passed.
3d. That the same matters and things had already been adjudged in the suit above referred to.
4th. A general denial, and prays dismissal of the injunction, with damages, &c.
The cause was tried by a jury, who found a verdict for plaintiff in the sum of three thousand six hundred and eighty dollars and fifty-one cents, and that he recover the slaves.
A new trial was granted, and a second jury found a verdict for the plaintiff for six thousand four hundred and nineteen dollars and thirty-six cents, and that he recover the slaves, on which verdict judgment was rendered, and this appeal has been taken.
The cause was heard'at the last October term, but left undecided. Both parties now unite in desiring a final judgment, without remanding.
The conclusion we come to leaves out of view several questions which have been well argued at the bar; that conclusion is:
First, that the plea of res judicata must be sustained, as to so much of the plaintiff’s petition as claims the contract to be a loan, and not a defeasible sale.
Secondly, as to so much as claims that the profits or fruits by them produced belong to Patterson, the plaintiff. A reference to the pleadings in that suit, detailed above, will show that these points, urged in the present suit as means of [233]*233attack, were, in the former suit, used as a means of defence. The issues in both were: Is the contract a loan, or a sale with condition 1 Are the profits or revenues arising from the labor of the slaves the property of Patterson, or of Mrs. Bonner ? All the requisites to constitute a final judgment on these points are before us: the same persons, acting in the same character, the same thing, the same cause of action.
Where a judgment of a court of competent jurisdiction stands unappealed from and is final, it is conclusive on all the matters embraced in it: whatever maybe the errors or injustice done by it, it forms res judicata, and cannot be reexamined,
Admitting, then, on behalf of the plaintiff, that what the defendant denies to be put in issue by the pleadings really was so, and that w;hat formed the subject of the principal discussion, viz. does the case present a vente h réméré, or the contrat Pignoralif? in other terms, a defeasible sale, or a feigned and usurious loan, is in issue in the present suit. Is not this matter settled by the judgment, which, under such pleadings, decreed to defendant the property in these slaves, according to her title, and the sum of one thousand and fifty dollars per annum, in lieu of the profits or use of the slaves.
If further proof be needed, the record furnishes it (for the whole proceedings and evidence are in proof in this case.) The defendant in that cause (plaintiff in this) propounded •interrogatories to Mrs. Bonner, the first of which was, “Was it not agreed and understood between us, at the time of the sale, that they (the slaves) were to remain in my possession, and that I was to have the use and enjoyment of them?” to which she answered, “it was not so understood by her.”
If, now, we proceed to decide that the slaves belong to him, and that he is entitled to their labor, will it not be in direct contradiction to the former judgment, not only un-appealed from, but carried into execution more than ten years since.
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Strawbridge, J.,
delivered the opinion of the court.
The history of this suit, which has been one' of much interest in the community where the parties resided, and of great excitement between themselves, is this : On the 18th of March, 1825, the plaintiff, by authentic act, passed before the judge of the parish, bargained and sold to the defendant twenty-four slaves, the consideration for which was seven thousand nine hundred and twenty-two dollars, payable “ as follows: one thousand nine hundred and twenty-two dollars, in hand, being a debt which Patterson owed her, and which she releases and discharges; two thousand dollars on the 1st March, 1826 ; two thousand, 1st March, 1827; and the remaining two thousand, on the 1st March, 1828; for which said instalments the said Mrs. R. Bonner has given her three promissory notes, bearing even date with these presents, &c.”
On the same paper is the following “ Memorandum : It is agreed, that the said Thomas Patterson shall have the privilege of redeeming the negroes mentioned within, at any [231]*231time within three years after the last instalment mentioned within shall have been paid, by repaying the price, as expressed within, to the said Mrs. Rosanna Bonner, her heirs or assigns, with interest on the same at ten per cent, per annum from the time such payments shall have been made till such redemption shall take place.”
On the 27th day of March, 1827, Mrs. Bonner instituted suit against Patterson, claiming from him the slaves, with their profits, they having remained in his possession, and requiring a sequestration, on the ground that she feared their removal from the state. Patterson contested this claim; the cause was tried, and judgment being rendered against him, in November, 1827, for the slaves and their profits, at the rate of one thousand and twenty dollars per annum, a writ of possession was issued, under which they were delivered to'her on the 14th February, 1828.
On the 7th of February, 1834, a fieri facias issued on the judgment, for the sum of one thousand nine hundred and forty-five dollars, being the hire or profits of the slaves from 18lh March, 1826, to 14th February, 1828, under which a tract of land was seized and advertised. Hereupon, Patterson commenced the present suit, in which he declares that this conveyance was made “ to secure to her a certain sum of money;” “ that it was expressly understood between them, at the time of making said instrument, that he was to have the services of said negroes, in order to enable him to pay the amount due her; and that, in pursuance of this understanding, they were left with him for nearly three years.”
“ That, after she thus obtained possession, it was agreed between them that interest should not run on the amount due her, and that the services of the slaves were more than equivalent to the interest;” “ that he had made her a tender of the amount due her, which she refused to receive, or to deliver the slaves to him ;” “ that the services of the slaves were worth three thousand dollars per annum, which, in the six years and two months she held them, amounted to eighteen thousand and five hundred dollars, which is due him.”
[232]*232He further sets forth, “ that, under the judgment already spoken of (which he calls a pretended one, which the said Rosanna Bonner subsequently told him was not just and right, and that she would never claim it), execution has issued, against which he prayed an injunction, as also judgment for his eighteen thousand and five hundred dollars, after deducting the amount due to her under the agreement.” The injunction was issued.
The defendant appeared, and, for answer, showed :
1st. That the suit has been prematurely commenced; that no legal tender or demand had been made.
2d. That the right of redemption never existed, but, if it had, the time for exercising it had passed.
3d. That the same matters and things had already been adjudged in the suit above referred to.
4th. A general denial, and prays dismissal of the injunction, with damages, &c.
The cause was tried by a jury, who found a verdict for plaintiff in the sum of three thousand six hundred and eighty dollars and fifty-one cents, and that he recover the slaves.
A new trial was granted, and a second jury found a verdict for the plaintiff for six thousand four hundred and nineteen dollars and thirty-six cents, and that he recover the slaves, on which verdict judgment was rendered, and this appeal has been taken.
The cause was heard'at the last October term, but left undecided. Both parties now unite in desiring a final judgment, without remanding.
The conclusion we come to leaves out of view several questions which have been well argued at the bar; that conclusion is:
First, that the plea of res judicata must be sustained, as to so much of the plaintiff’s petition as claims the contract to be a loan, and not a defeasible sale.
Secondly, as to so much as claims that the profits or fruits by them produced belong to Patterson, the plaintiff. A reference to the pleadings in that suit, detailed above, will show that these points, urged in the present suit as means of [233]*233attack, were, in the former suit, used as a means of defence. The issues in both were: Is the contract a loan, or a sale with condition 1 Are the profits or revenues arising from the labor of the slaves the property of Patterson, or of Mrs. Bonner ? All the requisites to constitute a final judgment on these points are before us: the same persons, acting in the same character, the same thing, the same cause of action.
Where a judgment of a court of competent jurisdiction stands unappealed from and is final, it is conclusive on all the matters embraced in it: whatever maybe the errors or injustice done by it, it forms res judicata, and cannot be reexamined,
Admitting, then, on behalf of the plaintiff, that what the defendant denies to be put in issue by the pleadings really was so, and that w;hat formed the subject of the principal discussion, viz. does the case present a vente h réméré, or the contrat Pignoralif? in other terms, a defeasible sale, or a feigned and usurious loan, is in issue in the present suit. Is not this matter settled by the judgment, which, under such pleadings, decreed to defendant the property in these slaves, according to her title, and the sum of one thousand and fifty dollars per annum, in lieu of the profits or use of the slaves.
If further proof be needed, the record furnishes it (for the whole proceedings and evidence are in proof in this case.) The defendant in that cause (plaintiff in this) propounded •interrogatories to Mrs. Bonner, the first of which was, “Was it not agreed and understood between us, at the time of the sale, that they (the slaves) were to remain in my possession, and that I was to have the use and enjoyment of them?” to which she answered, “it was not so understood by her.”
If, now, we proceed to decide that the slaves belong to him, and that he is entitled to their labor, will it not be in direct contradiction to the former judgment, not only un-appealed from, but carried into execution more than ten years since. There must be some end to litigation : what suitors have once had the opportunity of settling, must, when decided, be final, or all rights of person and of property-are afloat. It matters not how strong the case, how great the errors of the former decree were, or what may be our opinions concerning the rights of parties, if we could examine them. When the final decree of a court of competent jurisdiction, passing on the same matters, &c., is presented to us, [234]*234if we can open it, the very foundations of society are broken up, and endless, fruitless litigation is all that is left.
In a sale 'with a defeasible condition (vente á rémévé), it rests solelyon thewill of the vendor to dissolve the contract, and his expression of that will must have the same effect as the will of both parties in creating the contract.
The next question to examine, is, whether this action can be sustained by the plaintiff, he having made no tender of the price, &c., before instituting suit. It is insisted on the part of the defendant, that to entitle the plaintiff to recover the property, it was essential he should have paid or consigned (he price, whilst the plaintiff insists, that not even a tender was necessary; but that, if necessary, it has been made. On this' subject the proof is, that on the 24th of February, 1834, (the last payment having been made in 1832,) the plaintiff, accompanied by two witnesses, waited on the defendant, and told her “ that he had come to pay her the money he owed for the redemption of the negroes.” She replied “she could have nothing to do with it; she had given up the business to her children, and any thing they would do she would be satisfied with.” That, defendant' then turned "to her son, (who was present,) and had the management of her affairs, and said to him, “ I suppose you will make no other arrangement but the one we were talking of,” who replied,.” JVo.” That this was not a legal tender we do not doubt; but it is very questionable, whether it did not amount to a waiver of such a tender. This, however, we do not find necessary to decide.
The Code Napoleon has, so far as regards this question, the same provisions as our own. Under these, the better opinion, (as it appears to us,) is :
1. That as the defeasible condition rested solely with the vendor, the expression of his will to dissolve the contract must have the same effect as the will of both parties to create the contract.
2. That this need not be accompanied by “ les offres reel,” (a tender,) but that a mere verbal offer sufficed.
3. That such offer, made within the term allowed for redemption, preserved the right of redemption, and authorized the action after the expiration of the time. Troplong, Contrat de Vente, No. 718, et seq., has treated this matter most ably, in a dissertation too long for insertion here :
ventioHnTsale3 with «defeasible condition, in the presence of two eTto^-epay^the pro" perty within the which was redco„® signment of the that^is was á ™Jf“enttonott1®“ yende? 0f tiie intention to redeem and pre-jfoi' his right" of action to dissolve the contract after the term had el
the yghtofredemption is preserved to the vendor of raa'hness'to re-™5wn'mue yet, without á tendel"™™1 the titledhto'8 "he °r’
réméré, where possession and ^profits"off"he property, a stipulation to pay ■ten per cent, in-dj-mpUon* ami repayment of the price, will be deemed illegal.
Duranton, vol. 16, Cours de Droit, No. 403, approves of this construction, but limits the demand to one made in form to a “ signification,” “ accompagnée d’offres méme incom-pletes, raéme irreguliéres et faites dans le delai convenu et.ait une manifestation du vendeur d’exercer le réméré et avait en consequence conservé son droit encore que ces offres n’eussent été services dans le mois ni dans le delai fixé d’une . . . . •action en justice.5’
If we are to assume the opinions of these enlightened jurists, which are supported by decisions of the tribunals of France, we cannot avoid the conclusion that a sufficient notification of the plaintiff’s intention to avail himself of the clause “ a réméré,” has been made, and that his action, even after the term of redemption, has been preserved.
But a very different result from that contended for by the plaintiff follows; though he thus preserves the right of redemption, the fruits or profits do not become his until the Cl • T . . ~ , , payment or consignment of the price. Louisiana Code, article 2564, corresponding to page 364, article 106 of the old Civil Code of 1808.
• ,, , ,, , ine ten per cent, interest on the loan cannot be allowed, The judgment pleaded in bar does not give it. In deciding the contract to be one of sale, and not of loan, it appears to ’ rr have been impliedly settled, that no interest could be allowed, We have given the defendant the benefit of that judgment. This question of interest, had it been open, would have been a very awkward circumstance in adjudging this contract not lo be a loan. We know of no law authorizing •such a stipulation for interest.
The amount of the first judgment, it is necessary to say, forming neither part of the purchase money, expenses for repairs, costs of sale, or of improvements, stands on a different footing from the price, and cannot be connected with it and the restoration of the slaves.
We therefore order and decree, that the plaintiff recover from the defendants the slaves named in the petition, or such 1 of them as survive, on paying to defendants the sum of [236]*236($7922,) seven thousand nine hundred and twenty-two dollars.
That the injunction be dissolved, and that the plaintiff in injunction, together with his surety, John B. Scott, be condemned to pay the heirs of Rosanna Bonner ten per cent, interest, and ten per cent, damages on the sum of ($1945,) one thousand nine hundred and forty-five dollars, and that the said defendants, heirs of Rosanna Bonner, pay costs in both courts.
The following amendment was made to this judgment:
“ On motion of J. K. Elgee, Esq., of counsel for the plaintiff, and by consent of II. M. Hyams, Esq., counsel for the defendant: It is ordered, that the judgment be amended by inserting the names of E. L. Briggs and Wm. H. Cureton as sureties in the injunction bond, in lieu of J. B. Scott; and that this order be entered as of the 18th (October) instant, the day on which said judgment was rendered, the motion having been made at the time of rendering the same.”
Order on an application for a rehearing :
“ On motion of J. K. Elgee, Esq., counsel for the plaintiff, a rehearing in this case is granted, so far as relates to the plaintiff’s claim to the children born during the time the slaves were in possession of the defendant; but this order shall not prevent the execution of the judgment in these matters; and that in the delivery of said slaves, children under ten years of age shall not be separated from their mothers. But the plaintiff shall give security, at the discretion of the judge a quo, to produce such children, to answer the final decree ; and that the rehearing as to the other parts of the decree be refused.”