BISSELL ET UX. vs. ERWIN'S HEIRS, 10 La. 524

Bullard, J., delivered the opinion of the court. The plaintiffs seek to recover in this action, damages occasioned by an eviction of a tract of land and a number of slaves, which they allege were purchased by their ancestor, from the ancestor of the defendants. The eviction is shown to have taken place, in consequence of a mortgage given by Erwin. The essential character of that contract, and of another subsequently entered into between Erwin and Wright, forms the principal subject of controversy in the case.

The act under private signature of the 13th of May, 1827, recites that Erwin sells to Wright the property in question, for a sum of eleven thousand dollars, payable in fifteen years; Wright agrees to rent the plantation and slaves from Erwin, for each year, for the sum of eleven hundred dollars, Erwin reserving a privilege on the crops. It is agreed, that Wright is not to be dispossessed in the event of Erwin’s death, until the full term of fifteen years, provided the rent be paid up each and every year.

If the rent should not be paid in any one year, and in consequence of the failure of crops, it is to be prolonged another year, on the payment of ten per cent., interest, on the rent in arrear. If any of the slaves should die, it is agreed J 7 # ® that Erwin is to convey only what remains with the increase; Wright reserves to himself the faculty of. paying the whole price, at any time previously to the expiration of the fifteen years. And in that case, Erwin binds himself to convey the property.

We find no difficulty in pronouncing, that this contract embraces all the essentials of a sale, and was complete as such 7 1 between the parties. The property was at the risk of the purchaser, and as between them no further act or conveyance was necessary to complete the contract. The agreement as to rent, is nothing more than a stipulation to pay interest on the price, at the rate of ten per cent., disguised under that form.

That such an agreement did not create the relation of lessor and lessee between the parties is clear, because the Pretended lessee was himself the owner of the property which was already at his risk, and it is absurd to say, that one may , be the lessee of his own property. Where the purehasersubse-a pdvatelnstíument or memorandum, in which he de-dures ^ Iig lias this day rented vendor )E ’ his plantation, whereon I now live, together fe^^andT engage to pay the a certain’sum, aU expense,'e&ci! and that j. E. have a privilege on all the crops;” was only ifharm-which "did ^not rescind the sale.

But it is contended, that by a subsequent agreement on the 25th of November, 1828, the original contract was, in effect, rescinded, and Wright became the real lessee of the property. This agreement which is signed only by Wright, is a memorandum, “ that the undersigned has this day rented of Joseph Erwin, his plantation, whereon I now live, the present and next crop, say ending the 1st of January, 1830, together with the negroes, &c.

I engage to pay all expenses of said plantation, slaves, taxes, &c., and to pay the said Joseph Erwin one thousand eight hundred and forty-seven dollars and eighty-four cents, clear and free from all and every expense, and that the said Erwin shall hold a privilege right on all th'e present and future crops, &c.” We ,do not see in this agreement, any abandonment of the light on the part of Wright, to pay the price stipulated by the first contract> aiKl relieve himself from the payment of any further rent or interest on the price.

The two contracts are not more repugnant to each other than the first is to itself; the on]y difference appears to us to be a difference of rent for one J 11 year and part of another. That this memorandum does not in itself show a reconveyance to Erwin, is clear, and if the ®rst contract was cancelled, and the property reconveyed, it must be shown by different evidence. We regard this as . . , . _ ,. a mere continuation of the same fiction, and as evidence of some settlement in relation to the rent, which had been paid Up to its date, and for what should be paid for the year 1829.

After that'period, the original contract would still be in foi’ce, for ought that appears in this agreement. Admitting that the expression “ his plantation, &c.,” makes it probable . ‘ 1 . r that Erwin had become the real owner again, yet it could at best furnish but a commencement of proof in writing, which can 110 Í°n&er by law, be eked out by secondary evidence, The parties appear to have desired that the world should consider Erwin as still the owner, under the previous sheriff’s sale, and Wright, the former owner, as merely his tenant.

Both acts, under private signature, present them in that light relatively to each other, and may, in our opinion, all be considered as consistent with each other. That it was a harmless simulation, as the rights of third persons were not affected. So where a purchaser or creditor is evicted by a prior mortgage, which existed on the premises when he bought, and the eviction was had before, the expiration of the term of payment, the seller will be liable in warranty, as the ven-dee ' is not ia delay as regards the payment.

The signatures to receipts of deceased persons, offered to charge their ‘ estates, must be strictly proved by experts, and according to the principles - established in the case of Plicque $nd •Le Beau vs. Labvanche. 9 Louisiana Be* porlSy 559. The eviction is shown to have taken place, in consequence of a mortgage created by the vendor. Towards Wright, Erwin was a warrantor, according to our understanding of the contract. The former was not in delay, as to the payment of the price, as the fifteen years had not expired.

We are of opinion, that the court did not err, in refusing to permit the alleged receipt of Erwin, for the price and rent? to be read to the jury. The report of the experts did not sufficiently prove it to be genuine, and under the circumstances of this case, strict proof should be required, according to the principles settled by this court in the case of Plicque and Le Beau vs. Labranche. 9 Louisiana Reports, 559. The verdict of the jury appears to us, not to have done justice between the parties, according to the evidence in the record, and the case must be remanded.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court, be avoided and reversed, the verdict set aside, and the case remanded for a new trial, and that the appellees pay the costs of this appeal.