Bair v. Abrams , 12 La. Ann. 753 ( 1857 )

Voorhies, J.

This is the second appeal which has been taken in this case. In the former, the ruling of the Judge a quo was held to be erroneous in refusing the defendants a continuance to enable them to prove the fact, as set forth in their affidavit, “ that the plaintiff’s title to the slave in dispute had boon conveyed, by act under private signature, to George W. Goodie, prior to June, 1852.”

On remanding the case, no attempt appears to have been made by the widow Bushey to call her vendor, Joseph T. Calhoun, in warranty; neither does it appear that Goodie has ever been notified of this suit.

The defendants derive their title from Goodie. On the hypothesis that the evidence warrants the conclusion, that the slave in question was in tho plaintiff’s possession as owner in January and February, 1852, and was brought hither by him from Texas, as alleged in his petition, it remains then to be ascertained whether or not his title has ever been legally conveyed to Gooehe. In proof of the divestiture, the defendants introduced a power of attorney under private signature from the plaintiff, to a certain B. T. Houghton, dated the 9th of Juno, 1852, and a letter from the plaintiff to Pickett, Perkins & Co., dated 17th July, 1852. Tho mandate or procuration contains the following-clause : “ And to prevent tho sale of a negro woman named Mary, sold by me to one George W. Goodie for the space of twelve months, for six hundred dollars ; as there is a special contract and agreement between the said G. W. Goodie and myself, that the said slave is not to be sold to any one within twelve months, and only to myself, and for tho amount of six hundred dollars, being the purchase monej'-,” &c. In his letter, the plaintiff declares:

“ Moreover I will state to you, that I sold a light colored girl named Mary Sneed to a Mr. Goodie; the girl I was to have back at the same price which she was sold for, which was six hundred dollars, when I returned from California, u;- at the expiration of twelve months.”

On the trial below, the plaintiff objected to this evidence on the ground that, if offered to prove a verbal sale from him to Goodie of the property in question, it was inadmissible, as such a sale was null and not susceptible of proof; and if offered to prove a written sale of said property, it was equalty inadmissible as secondary evidence, tho sale itself as the best should be offered, unless shown to have boon lost or destroyed, or its production shown to be out of the power of the party.

The objection, it appears to us, could only go to the effect and not the admissibility of tho evidence. As a general rule, it is true the law requires literal proof of title to immovables or slaves, but a verbal sale of such property, accompanied by actual delivery, and proved as required under Article 2255 of the Civil Code, is no less binding on the parties. Tho written admissions of a party of the existence of a verbal sale of such property, ought certainty to be as binding- upon him as that which is elicited from him when interrogated on oath under that Article, But in the present case it seems to us, that the evidence objected to is primary and not secondary, making- legal proof of title to the property in controversy. Millaudon v. Police Jury, 8 N. S. 130; Millman v. Leverich, 11 La. 520.

The contract then between Bair and Goodie is shown to be a salo with tho right of redemption (la faculté de réméró ou de rachat), which rested solety on the will of the former to dissolve it, by offering to repay the price and redeem the property. Patterson v. Roman, 14 La. 214. “ If that right 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.” C. C. 2548. In the present case, as tho stipulated term.has long since expired, it is clear that the right of redemption can no longer be exercised.

Judgment affirmed.