HUTCHINGS vs. FIELD ET AL., 10 La. 237

Bullard, J., delivered the opinion of the court. The plaintiff sues to recover certain slaves in possession of the defendants severally, which he claims as owner. The defendants set up title under a sale made by James Plaisted, who, they allege, was duly authorized to sell them; and that the plaintiff, by

an act passed before James Ray, Notary Public, on the 16th of February, 1828, sold and conveyed said slaves, together with other property, to J. L. Johnson, E. Bowles, G. Singleton, I. L. Baker, and W. Stirling, by whose assent they were sold> to the defendants. The title of the defendants depends, therefore, upon the character and constitution of the instrument passed before Fay, which, the plaintiff contends, created only an antichresis or a mortgage, but which, the defendants insist, amounts to a sale of the slaves in question.

Where A,1 in consequence of several persons endorsing his notes in hank, sells, conveys and delivers, by an authentic or notarial act, several slaves to them, to be hol-den' until .they shall be fully satisfied for their endorsement that A shall have the power of redeeming said slaves, on paying* said notes as they fall due: Held, that this is a mortgage for the security of the endorsers, and not a sale which vests the property, with the right of alienation.

When there is no price stipulated, and the words of the act or instrument of conveyance are, that the person to whom it is made, shall hold the property wi-til their endorsements are satis-jied, it repels the idea of a contract of sale.

That instrument recites, that a certain tract of land in Opelousas, and the slaves now in controversy, had been seized in execution as the property of Hutchings; that Johnson, Bowles, Singleton, Baker, and Stirling, in order to release the property from seizure, endorsed for Hutchings three promissory notes, one for seven hundred and seventy dollars, one for five hundred and fifty dollars, and one for two thousand four hundred dollars, payable twelve months after date, in the Bank of Louisiana. “ Now, in order to secure the aforesaid endorsers for their said endorsements, Hutchings sells, sets over, conveys and delivers to his said endorsers, the aforesaid property, to be holden by ¿hem. until they shall be fully satisfied for their said endorsements.

It is further agreed, that the endorsers shall have the right to sell the tract of land upon such terms of credit as will meet the payment of the above notes, not to exceed two and three years. It is further agreed, that Hutchings shall have the right of redeeming the slaves on paying the notes as they fall due, and fully discharging his endorsers from liability on account of the same.” We are of opinion that this is not evidence of a sale of the slaves. No price is stipulated.

It is true, a consideration for the contract, such as it existed, is stated, to wit: that the other contracting parties had become his endorsers, and bound themselves to pay certain sums of money if he did not, upon demand and notice. And the declared intention of the parties, was, to secure and indemnify the endorsers in the event of their being rendered liable, and on their payment of the notes. It is also true, words of conveyance, such as are usual in contracts of sale, are employed. But we. are to look at the substance and essence of contracts, rather than their form.

The expressions used in the act, that the parties are to hold the property until they shall be fully satisfied on account of their endorsements, repels the idea of a sale. The agreement, as to the sale of the land on credit, is evidence of a mandate accepted by the endorsers. Instead of sening the land, whicbj we think, stands on the same footing -witli the slaves as to the title of the endorsers, they sold the slaves. It is contended that this is a sale with the right of redemption. A right to refund the price and take back the property, necessarily supposes that a price has been stipulated.

In this case we think there was no determinate Pr*ce* The intention of the parties evidently was to affect the property which formed the object of the contract to the payment of such sums as the endorsers might be obliged to Pay to the bank; and the contract contains all the essentials 0f a mortgage, according to the definition of the Code, Articles 3245, 3249. It is true, possession of the slaves was given to the endorsers, but it is not of the essence though of the nature of the contract of mortgage, that the mortgagor S^0UM remain in possession.

Such a convey-with the power Arightforefund take Pbaek ale property, neees-aanlpricePP has Therewasncfdel terminate price, was not divested of title. is vaiid™evenSif the propertyaf-fected is given to the morlga-gee. It is not of though TX nature of the contract of mortgage, that shouidrenminin possession. We conclude, therefore, that the plaintiff did noi divest . . ¶ . himself of title. We have doubted whether the defendants ought not to be maintained in possession until the money paid in bank by x " * * the endorsers shall have been refunded.

But we are, upon whole, of opinion, that the defendants are not subrogated to the rights of the original endorsers, and that the action to be exercised by them or their representatives, to enforce payment out of the property, is one which could not be divided so as to be exercised by the defendants severally. They must, therefore, be left to their recourse on the vendors in warranty and the rights of the endorsers under the original contract reserved.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled and reversed; and it is further adjudged and decreed, that the plaintiff recover of the defendants, severally, the slaves named in the petition, to wit: of John N. Field, the slave Simonson ; of John Brownson, the slave Isaac; of Jared Y.

Saunders, the slaves Jessee and Thorn; and of Hilaire Carlin, the other slave, named Tom: and it is further ordered, that the case be remanded to the District Court for further proceedings, as between the said defendants and their warrantors, and that the defendants pay the cost in both courts; reserving, however, to the original endorsers, or their representatives, their rights under the original contract with the plaintiff, to be paid out of the property therein specified, such sums as they may have paid on account of the plaintiff.