Purdon v. Linton's Executors

9 La. 563

• Court: Supreme Court of Louisiana
• Decided: June 15, 1836
• Status: Published

Opinion

Bullard J.,

delivered the opinion of the court.

This case has been submitted upon written arguments, and presents the single question, whether there is sufficient legal evidence in the record to show that a contract between the plaintiff and the late John Linton, purporting to be a sale of certain lots in the city of New-Orleans, was, in fact, not intended to operate as such, but was entered into for the sole purpose of securing Linton Against certain endorsements, from which he has since been released by the plaintiff. .

Parole cvi-missibie to prove ísai^that0u°e properiyingiies-ed'aTa^eeurítyí to indemnify gainst certain from which he released06 been Parole evi-sibiceto'S explain an ambiguity, arising extrañeous of the writ-andtoshowfliat certain property alluded to in a counter-letter, was the sole property of the vendor, and must have been that which formed the subject of the sale and conveyance sought to be rescinded. A written in-doesnotofitself prove a contract moveable pro-renEred^suffi-cient by the ad-missiouofpai’ole evidence, to ex-large lions.

Parole evidence would be clearly inadmissible, to prove as between the parties, that species of simulation. The plaintiff relies xipon a letter from Linton, written to him about the same time the act bears date, as a counter-letter. He begins by saying, that he fears there is some misunderstanding as to the consideration to be inserted in the deed, for the levee property. He then goes on to say, “ (.his conveyance is a reai securjty • jf ^ ever operates as a security, it must, not be put at a price that no man in his senses would think of. I therefore will not consent to receive it at a larger sum than ^e consideration expressed in the deed,” &c.

The expressions contained in this counter-letter, certainly repel the idea, that the conveyance alluded to was intended as a sale for a fixed price, and the only doubt is, whether it alludes to the contract in question. It speaks ,of the deed for tbe levee properly. Here is an ambiguity, not arising from the language used, but from something extraneous. Parole ° ° . . . , ° evidence was admissible, m our opinion, to explain such an ambiguity. The evidence shows clearly, that this was known as the levee property, and that the plaintiff had no other in that part of the city. It is also shown, that the parties were in the habit of endorsing for each other, and that at the time of the conveyance, Linton was about departing on a journey to the North, from which he never returned, and that all his engagements were released by Purdon paying the notes which had been endorsed by him. It is further shown, that the property never was delivered to pintón, but has always remained in possession of the plaintiff, who has continued to receive the rents.

It is true, that our code has abolished the old doctrine of commencement of proof in writing, which authorised the admission of parole evidence, to prove that, which any . . . . , , .. , , , _ writing emanating from the party rendered probable. In case of Allison vs. Fox, 5 Louisiana Reports, 460, this court held, that a paper which did not per se prove a contract of sale of real estate, could not be rendered sufficient by parole evidence, to explain or to enlarge it, so as to render it obligatory on the pretended vendee. But the present case is different. The paper produced is a counter-letter, which venders it quite clear to our minds, that Linton did not ♦ , intend really to purchase the property, but merely/hold it as a nominal purchase, to indemnify him against his engagements as endorser. He objects to a higher sum being , , ... , , . . mentioned as the consideration, and that sum is nineteen thousand and thirty-nine dollars and eighty-two cents, and the reason he gives, is, that the conveyance is a real security, r ,’ , , , , . , . / It was not, therefore, understood by him as a sale of the property, and we have no doubt, from the evidence before us, that if he were alive he would re-convey to the plaintiff. J r

A letter, written "by the ven** aee to the ven-ho^ses^ncTiots1 which renders it quite clear that the vendee did "o^urohas^tibie property, hut merely to hold it as a nominal curehlm against cert£dn endorsements for the vendor, will be deneeofthetme

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.