On Application for Rehearing. We have studied the lengthy application for a rehearing and the briefs in support thereof, and have carefully reviewed the entire record and the briefs filed herein.
The basis of the defendants' contention, which was adopted by the district court in holding that the instrument was not an antichresis, was that the essential element of a specific debt was not recited in the act. Language was used therein which sufficiently indicated that the debt sought to be secured was one on the "within described property". It appears from the record, all in writing, that the indebtedness of Acosta to Harang, evidenced by the mortgage notes and the recorded *Page 1131 mortgage was the only debt existing between the parties and referred to by them in the act. If an unrecorded counter letter between the parties can be legally considered by the court in connection with a recorded strictly cash act of sale, in order to determine whether or not the intention of the parties was to execute a cash act of sale or an act of antichresis, then we can see no reason, legally or logically, why a recorded and referred to mortgage in the act or instrument creating either an act of sale or an antichresis cannot be likewise considered by the court in arriving at its conclusion as to which of the two the parties intended to execute. When the parties refer to the recorded act of mortgage in the instrument they identify the preexisting debt sought to be secured and it would have been useless to again recite in the instrument the details concerning the debt i.e., the amount, the rate of interest and maturity date, as all of these were expressly and clearly stated in writing in the authentic act of mortgage, which was recorded. Therefore, the alleged lack of an essential element of an antichresis as authorized by the Civil Code, i.e., the nature of a definite debt, rate of interest and maturity, was clearly present and, as it was expressed in writing, satisfied the requirements of the Code. The defendants' attorney had no trouble in figuring to the penny the amount claimed under the mortgage, as will appear hereafter.
Our learned brother below states in his reasons for judgment in holding that the instrument did not create an antichresis, that he was considering only the instrument itself with no reference whatever to *Page 1132 the recorded and referred to mortgage. If he had construed the instrument in connection with the act of mortgage as he concedes the law required him to do with reference to an unrecorded counter letter, then the said missing essential element, i.e., a specific debt, would have appeared and he would have been forced to conclude that the instrument created an antichresis.
The construction sought by the defendants and adopted by the trial court requires the deletion from the instrument of a paragraph that had definite legal significance under the Articles of the Code on the subject of antichresis. The position of the plaintiffs requires that the court give effect to that paragraph. The parties used the form of a cash act of sale but expressly in the act itself legally classified the transfer and conveyance as an antichresis and not a sale by using the language contained in the contested paragraph, which had the effect of limiting or modifying the usual result of parties signing a cash form of sale without any such restrictive or qualifying clauses. It appears to us that this is a stronger and clearer way to establish an antichresis than by mere unrecorded counter letter for the reason that the entire transaction is contained in one document and that instrument placed of public record so that all parties dealing with the title to the property are placed upon notice.
The law-writers and the courts recognize the danger of reforming an authentic act on the ground of alleged errors or mistakes by requiring definite and clear proof thereof. It would certainly be doing violence to this rule to hold that, the *Page 1133 testimony of a notary public (who admits that there was nothing about the transaction to especially make him remember it) was sufficient proof of the alleged error, particularly when both parties to the instrument were deceased. Such a rule would invite fraud and surely place the valuable rights of land owners to their property in the hands of the notary, who passed the act of sale or instrument affecting their property.
The notary testified that he had drawn and executed authentic acts affecting immovable property for Mr. Harang on a number of occasions; that in this instance, Mr. Harang called him by telephone and requested him to come to his home for the purpose of passing some acts; that he took his typewriter and the necessary paraphernalia and went to Mr. Harang's home where, upon his instructions, he drafted the acts, including the one in contest; that Mr. Harang told him to prepare a cash act of sale by Mr. Acosta to himself for $3,750; that when Mr. Acosta arrived, he explained the transaction in English and French, because Mr. Acosta was an illiterate man; that Mr. Acosta stated he was turning the property back to Mr. Harang, because he was unable to pay the balance due thereon, and that the clause in question was inserted for the purpose of avoiding payment of Federal Internal Revenue stamps.
The witnesses for the plaintiffs stated that the conveyance or transfer was made by Acosta to Harang because he was unable to pay the balance he owed Mr. Harang on the purchase price of the property, but that Mr. Acosta could get the property back upon paying the balance due. *Page 1134
The form of the instrument in question is that of a cash act of sale and the paragraph in contest is, to say the least, highly indicative of an act of antichresis.
Therefore, with reference to the alleged error, if Mr. Harang had in mind a cash act of sale and Mr. Acosta an act of antichresis — there was no meeting of the minds of the parties — with the result that their mistakes nullified the attempted transaction, as evidenced by the instrument. This would leave the parties status quo with Mr. Acosta as the owner of the title to the property and Mr. Harang a mortgage creditor. Both parties being dead, their heirs would inherit their respective rights. So that, even from this point of view, the plaintiffs would still be entitled to recover.
Counsel for defendants in their brief in support of the application for rehearing have stressed the argument that the document was either a cash act of sale or a dation en paiment. No where in the defendants' answer or in the testimony of their witnesses do we find that they stated that it was such an instrument. In fact, the notary who passed the act specifically stated, as a witness for defendants, that Mr. Harang never said anything about a dation en paiment.
With reference to the argument that the representative of the Harangs secured the act of correction of 1936 in good faith, it is sufficient to say, conceding that he did act in the utmost good faith, in concluding that the words "to secure" had been erroneously inserted in the instrument instead of the *Page 1135 words "to pay" and that it was, therefore, an act of sale and not an act of antichresis, nevertheless, according to his own statements, he did not make a full disclosure of all of the facts to the plaintiffs but only those that were favorable to his clients and in accord with his interpretation of the instrument. There can be no doubt, whether the defendants' representative acted in good or bad faith, the plaintiffs were misled by his statements and acted upon them in signing the alleged act of correction of 1936.
Mr. Warren Harang, one of the defendants, stated that he received his college training at Sewanee University and had had extensive business experience, but that since the matter was involved and he did not fully understand it, he deemed it necessary to refer it to his attorney, who drafted the necessary act of correction, and he then accompanied his attorney and the representative of the Harang mineral lessees to get the parties to sign the document. These plaintiffs were contacted in their respective places of occupation, the farmer in the field, the dairyman in his dairy and the housewife in her kitchen, etc., — where the Harang representative explained the matter from their point of view only, and secured the signatures of the plaintiffs, four of whom were illiterate and had to affix their marks to the document instead of their signatures. Whether Harang and his representative acted in good faith is of no consequence, because their actions unquestionably deceived the Acosta heirs into believing that they had no rights in the property, and influenced them to sign *Page 1136 the document without any consideration whatsoever.
With reference to the question of an accounting, this Court, having reached the conclusion that the parties established an act of antichresis, it was the duty of the Harangs to render an accounting. They conceded that they had had full benefit of the property for fourteen years and had received all of the fruits and revenues from it during that time but kept no account thereof. It, therefore, appears to us that the plaintiffs, through the defendants' admissions, established a prima facie case of payment of the debt, and it was incumbent upon the defendants, particularly as the law places upon them the duty of keeping an account of the fruits and revenues derived from the property, to rebut the plaintiffs' prima facie case. When Warren Harang, who appeared to be in charge of the property, stated he was unable to give any reliable or accurate information concerning the proceeds and revenues of the property during that period of time, because there were no records or accounts kept, the defendants failed to rebut the prima facie case made out by the plaintiffs.
Even on the rehearing, counsel for the Harangs have not requested the Court to remand the case for the purpose of having an accounting rendered. The testimony of Warren Harang that there are no such records is evidently correct and no useful purpose could be served by remanding the case to the lower court for an accounting proceeding. This is particularly true where the plaintiffs have no knowledge of these matters and some of them were too *Page 1137 young to know anything about the transfer at the time it was made.
Counsel for the defendants suggest in their brief that the sum of $3,750, with 8% interest from February 14, 1922 to date of judgment, or $7,558, due under the vendors' lien of 1920 should be paid by the Acostas to the Harangs. This would be a manifest injustice to the Acostas, when no attempt was made by the Harangs to render an accounting, although the issue was raised in the plaintiffs' petition and an accounting was requested by them during the trial. Surely, defendants' neglect cannot redound to their favor.
Counsel in the brief in support of the application for rehearing here raise, for the first time, the question that their clients were deprived of their property without due process of law, in violation of the State and Federal Constitutions, U.S.C.A.Const. Amend. 14; Const.La. 1921, art. 1, § 2. No where in the defendants' pleadings or in the application for rehearing was this issue heretofore raised. After the *Page 1138 statutory delay for rehearing had expired, we granted counsel additional time within which to file a brief in support of his application for rehearing but this does not give him the right to raise issues therein that had not heretofore been made in his application for rehearing. This Court is powerless to grant a litigant additional time to apply for a rehearing and to allow a party to supplement the grounds for a rehearing in a brief filed after the statutory delay for rehearing had expired, would be equivalent to granting additional time in which to file the application for a rehearing. We, therefore, decline to pass upon the question of due process of law, because it comes too late.
The application for a rehearing is denied.
O'NIELL, C.J., does not take part.
PONDER, J., dissents.
ODOM, J., absent.
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