Franklin v. Sewall

Citations

• 110 La. 292
• 34 So. 448
• 1903 La. LEXIS 627

Syllabus

<p>SALE — MORTGAGE—EVIDENCE—AUTHENTIC ACT.</p> <p>As Relates to the Facts.</p> <p>1. The seller signed the sale, which she sues to have changed to a mortgage. She swore that, in signing the sale, she intended for it to be a mortgage.</p> <p>The buyer swore that there was no such agreement.</p> <p>No written testimony shows that it was not a sale, and the testimony admitted over objection is neither direct nor conclusive.</p> <p>The fact that there was no actual delivery of the property, and that the buyer said that he would not put her out of house and home, would not justify changing the character of the act from a sale to a mortgage.</p> <p>As Relates to Law.</p> <p>2. “An authentic act makes full proof against the parties.” Civ. Code, art. 2236.</p> <p>3. In the absence of written evidence, and in the absence of interrogatories on facts and articles, or proof of error or fraud (with only contradictory testimony), the court will not hold that the act is a mortgage, although on its face it is an absolute sale. An authentic deed cannot be entirely changed without evidence more certain and direct than that offered by plaintiff, and contradicted, as it is, by defendant’s testimony.</p> <p>4. The stability of title requires that an act shall remain unchanged, unless it be evidenced that downright fraud or error has been committed.</p> <p>(Syllabus by the Court.)</p>