On Application for Rehearing.
Breaux, J.Plaintiff, in his petition for a rehearing, urges that his alternative plea has not been especially referred to in the opinion.
The fact is, that we did not refer, in term, to a difference of $532.06. It is also averred that we did not decide by special reference to the legality, vel non, of the writ of sequestration sued out by the defendant, as plaintiff in reconvention.
Our opinion leads inevitably to one conclusion:
If $1700 was the purchase price at which the property claimed was transferred by act of 3d January, 1889, it included the $532.06; special mention of the fact was of no importance, as it was made evident by the decision that it is included in summing the consideration of the transfer. The title of the defendant to the property having been recognized, for the same reason the writ of sequestration and the motion for its dissolution were not referred to specially; the writ was maintained by the conclusion reached.
We will reconsider plaintiff’s propositions -and write down the grounds of our conclusions.
In plaintiff’s petition, the correctness of the settlement of April 24, 1884, in so far as relates to the debit side of the account, is admitted.
The balance was $1750, for which plaintiff executed his two notes of $875 each.
Plaintiff alleges that on the 18th day of November, 1884, he delivered to defendants four bales of cotton, charged at $171; on the 2d December, 1884, $15 was paid.
Plaintiff charges that $18 were overlooked in 1880.
*958Petitioner represents that these several sums were intended by him as payments on the note first falling due.
On the 3d of January, 1889, he sold to defendants one of the tracts he bohght in 1884 for $800 cash, and he avers that this amount was to be credited on defendant’s claim. .
On the same day another tract was sold by them to him for $1700. The vendor was given until the 1st day of January, 1890, to redeem the land on payment of this amount, which he in the deed solemnly admitted to be due.
The deed before mentioned recites “ that in case the vendor shall well and truly pay to the purchasers * * * the sum of $1700.” The plaintiff contends that there was error in that declaration; a •contention he has failed to prove. He testifies that he believed when he signed the act of January, 1889, he had been credited by -the defendants, and that he remained indebted in amount expressed by the last mentioned balance; that some time afterward he discovered that proper credit had not been given.
These deeds contain his declarations solemnly made with reference to the amount due.
The defendant testifies directly and positively that the recitals of the deeds are all correct.
He produces his accounts.
These show the balances set forth in the deeds. The plaintiff’s positive denial is the only testimony to set aside the deed as incorrect. The plaintiff swears that $1167.94 is the amount. The defendant testifies it is $1700. The conflicting testimony can lead but to one conclusion, that the declaration in the deed is correct.
They are the deed3 of the plaintiff as well as those of the defendants. We only enforce their terms and conditions and leave the plaintiff where he deliberately and solemnly chose to place himself.
With reference to the demand for the dissolution of the writ'of sequestration, it does not present insuperable difficulties. Plaintiff’s able and energetic counsel will admit that a pleader becomes a plaintiff in a demand by him in reconvention.
As- plaintiff in reconvention, the owner of an immovable property can- have it sequestered under Act 275, of the O. P.
The demand that the act of January 3,1889, be treated as a mortgage and not a sale; that, if treated as a sale, it be annulled for lesion beyond moiety, has been reconsidered.
*959With the evidence before us, we have risen from the consideration convinced that these transactions between the plaintiff, debtor, and the defendants can not in law bo changed or annulled.
The condition was that if plaintiff did not pay the $1700 on January, 1890, the place sold would be by him delivered to the defendants.
The amount is proven as correct, and the delivery was but in compliance with plaintiff’s obligation as vendor.
Rehearing refused.