On Rehearing.
By the WHOLE COURT.
LECHE, J.On reconsideration we find that the present action has not for its purpose the creation of title to immovable prop*615erty by parol evidence. If it were such an action then the decisions in Hoffmann v. Ackerman, 110 La. 1070, 35 South. 293, Hanby v. Texas Co., 140 La. 195, 72 South. 933, Barrow v. Grant’s Estate, 116 La. 953, 41 South. 220, Succession of Block, 137 La. 307, 68 South. 618, and others therein-cited, holding that parol evidence is not admissible to prove that property purchased in the name of one person was in fact purchased for another, would be appropriate. But the present. action was instituted to have what purports on its face to be an absolute sale declared to be a contract of security, as a mortgage or pledge with a right of redemption. The petition of plaintiffs admits that a consideration was paid to the vendor by the vendee, and that the vendee went into possession of the property, but alleges, however, that it was agreed that the property would be retro-ceded to the vendor when the consideration, said to be a loan, was returned by the vendor to the vendee. The petition does not allege that any time was fixed within which the so-called loan should be paid.
The act of sale is alleged to have been passed on January 8, 1914, and the suit was filed July 20, 1920.
. Plaintiffs allege as a conclusion that, considered as a sale, said act of January 8,-1914, is a simulation, and they contend that they are entitled to prove the allegations of their petition by parol evidence, under the provisions of article 2239 of the Civil Code, as amended by Act No. 5, p. 12. of 1884.
Article 2239, O. C„ provides that forced heirs shall have the same right to annul absolutely and by parol evidence the simulated contracts .of those from whom they inherit, etc. It is very questionable whether a sale made as alleged in plaintiffs’ petition is such a simulated contract as was intended to be included within the terms of the cited article. There is no doubt, for it is admitted, that the sale of January 8,1914, was real and genuine. There was a consideration paid by the vendee to the vendor, and the written act was not' a mere sham. Of what plaintiffs do in reality complain is that the act did not contain the whole and entire agreement between the parties, inasmuch as it did not stipulate the right of redemption, and for that reason they allege as a conclusion that it was a simulation.
The purpose of the cited provision of article 2239, C. O., was to provide a remedy in favor of the forced heir to enable him to annul simulated contracts which were intended to wrongfully or fraudulently deprive him of his inheritance. It is not pretended or even hinted that the ancestor through whom plaintiffs claim had the remotest idea of depriving plaintiffs of their inheritance, and for that reason it is exceedingly doubtful whether the facts alleged by plaintiffs justify their recourse to the provisions of the article of the Code which they invoke.
According to the note of evidence taken on the trial of the case, however, parol evidence was admitted without objection to prove the allegations of. plaintiffs’ petition, and we therefore do not believe that there is any reason why we should rule upon the admissibility of that evidence. The sole objection we have been able to find was made while one Alvin Hall was on the witness stand, and after many other witnesses had testified on the subject-matter in dispute, and the door for the admission of parol evidence had with the consent of defendants remained wide open. It was then too late to urge the objection.
The salient facts as we gather them from the record are that Tom Walton owed several debts, one of which was in the shape of a judgment; that, being pressed, he sold the land in dispute to his brother, John Jetus Walton on January 8, 1914, in consideration of the payment of those debts by the latter; that the price was fair and adequate, and *617that John Jetus Walton at once went into possession of the property. The land remained in the possession of John Jetus Walton and his children, and no demand was made for the return of the property, and no offer was made to reimburse the price which had been paid. Valuable minerals were discovered or supposed to have been discovered" under the land in 1919, and though Tom Walton died thereafter, in December, he took no steps to exercise his alleged right of redemption.
Several of the plaintiffs testified that their Uncle Jetus had recognized that he was under obligation to retrocede the land, and that he had even made a written memorandum in a little book entitled “Guide for Deacons” of the amount due him by Tom. Defendants on the other hand deny with equal tenacity the truth of the admissions alleged to have been made by Jetus.
The testimony is conflicting, and is by no; means sufficiently convincing to affect the authentic declarations made in the act of sale in January, 1914, at a time not suspicious and long before the discovery of minerals under the land.
We believe the judgment appealed from does full justice between the parties, and for that reason our former decree is reinstated and made final.