James Moore Wayne

“ Had the contract been a vente a r em er e, the land would have become their absolute property; for the code is, 'if the right to redeem has not been exercised within the time agreed on by the vendor, he cannot exercise it afterwards, and the purchaser becomes irrevocably possessed of the thing sold.' The exclusion of that irrevocable possession by Fort & Story, in the counter-letter, upon Livingston's failure to pay, destroys so principal and effective a provision of the vente a r em er e, that the law will not permit us to consider the contract to have been one of that kind. ”

“ The stores were to be completed by Rust, by the first of November 1822, in a workmanlike manner, and all the materials, except those already provided, were to be found by Rust; and in his contract, he renounced all claim or privilege upon the building, beyond the $8000 which was to be paid him by Fort & Story, for the complainant. For the deed of sale from Livingston to Fort & Story-the counter-letter to Livingston-Rust's contract, and the transfer of it-all of the same date, see documents, A, B, C (ante, p. 354) . ”

“ The counter-letter, the agreement to sell at a fixed day, and after reimbursing the defendant and Fort, to deliver the surplus proceeds of the sale to Livingston; the prolonged agreement to sell, after annulling the first counter-letter, without any renunciation of Livingston's right to the overplus, as set forth in defendant's answer; prove conclusively, to us, that Story regarded the contract to be, what it is really made by the law of Louisiana, a contract of pledge; a security for money advanced upon property. We think it was, in its inception, an antichresis ”

“ There is this difference, too, between the answer of the defendant and the exhibit, that it appears, from the latter, the sum of $1000 paid to Morse, which the defendant, in his answer, alleges to have been paid by him as a part of the consideration for the lot, or on account of Livingston, was not paid to Morse until the 12th of February 1824; more than six months after the time when the defendant considered himself and Fort to have acquired a full and absolute title to the property, from the failure of Livingston to pay on the 5th of August preceding. ”

“ The Civil Code of Louisiana says, 'the pledge is a contract, by which the debtor gives something to his creditor as a security for his debt.' Tit. 20, art. 3100. 'There are two kinds of pledges; the pawn and antichresis.' 'A thing is said to be pawned, when a movable thing is given as security; the antichresis is, when the security given consists in immovables.' Tit. ”

“ This rule is understood by us to apply to matters applicable to the merits, and not to mere pleas to the jurisdiction, and especially to those founded on any personal disability, or personal character of the party suing, or to any pleas merely in abatement. ”

“ He is likewise bound, under the penalty of damages, to provide for the keeping, and useful, and necessary repairs of the pledged estate, and may levy out of the revenues of the estate sufficient for such expenses.' Art. 3144. 'The creditor does not become proprietor of the pledged immovables, by failure of the 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 to be seized and sold.' Art. ”

“ The complainant, however, does not pray to be discharged from this sum, on a settlement of the transaction with the defendant; and therefore, the payment to Rust, of $8000, must be allowed to be a charge against Livingston.
We do not deem it necessary to make a further synopsis of the bill and answer. They are contradictory in several points; but a careful examination of them, and of the documents and exhibits attached to the answer, has enabled us to fix the legal character of the transaction, throughout, under the laws of Louisiana ”

“ And the case of non-payment, at the stipulated time, then Fort & Story 'covenant and agree to cause the said property to be sold at public auction, by one of the licensed auctioneers of this city, after twenty days' public notice, on the following terms, to wit, $25,000 in cash, and the residue in equal payments, at one and two years; the purchasers giving satisfactory indorsed notes, and special mortgage on the property, until final payment. ”

“ 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 ”