In May, 1915, Hezekiah Winn brought an action against Mrs. Dorothy Strickland and her husband, Learcus Strickland (the husband being joined as a defendant for the purpose of aiding and authorizing his said wife), in which certain demands were made, but all of which have since disappeared from the case, except one for the recognition and enforcement of a life estate or usufruct in an undivided one-half interest in a piece of real property called the Oaks plantation, and a disputed reversionary clause in the same act by which, in event Mrs. Strickland died before Winn, the said one-half interest was to revert to him in fee simple.
The case was before us in a former appeal, No. 22011, by Mrs. Strickland and her husband (he having appeared for the first time to authorize the appeal), from a judgment in favor of Winn recognizing and sustaining in him the usufruct or life estate, and,, inasmuch as it appeared that the defendant was a married woman, who had neither been authorized by her husband nor the district court to stand in judgment (the husband, a nonresident, not having been served with citation), we remanded the case to the lower court “to determine whether the defendant had authority to defend the suit and to stand in judgment, and for further proceedings not inconsistent with the foregoing opinion.” Winn v. Strickland, 147 La. 115, 84 South. 515. The only question discussed or determined in the opinion was that of the authorization of Mrs. Strickland.
The case went back, several pleas and exceptions were filed and urged, the court, at the instance of plaintiff, authorized Mrs. Strickland to defend the suit, the plaintiff took a nonsuit on all demands save as to the usufruct and reversionary claims, the case was again submitted, mainly upon the same record, and the lower court, in that instance, rendered judgment in favor of defendant, rejecting plaintiff’s demands, and the case is again before us, but this time on the appeal of plaintiff.
The Facts.
For several years prior to the 31st day of May, 1912, the plaintiff Winn and defendant Mrs. Strickland had owned in indivisión (one-half each) a piece of property situated in Jefferson Davis parish, near the town of Lake Arthur, called the Oaks plantation, which had been devoted mainly to rice farming, under conditions mutually satisfactory. Winn managed the plantation, financed its operation, furnished the necessary tools and implements, and Mm Strickland received one-fifth of the crop and paid half of the water rent. On the date mentioned the parties met in a hotel in the town' of Jennings, La., and, after some discussion, Mrs. Strickland began an attempt to write up an act of transfer by Winn to her of his undivided half of the property, and a number of forms were prepared by her before one was had which both were willing to sign. Eventually, however, terms were found,, as each thought, which were mutually satisfactory, and they proceeded to a notary public and signed, what was supposed to have been duplicate copies, in the presence of the notary and witnesses, without either being rpad at the time. Both were written entirely in the hand of Mrs. Strickland. Each took a copy, and the one received by Winn contained the following clause or paragraph, to wit:
“To have and to hold the said one-half of the said one-half interest in said tract of land aforesaid with the appurtenances, estate, and title thereunto belonging or in any wise thereunto appertaining to the said Dorothy Strickland and her heirs and assigns forever, and the said Hezekiah Winn covenants to and with the said Dorothy Strickland that he is lawfully seized and possessed of said land and has a. *239good right to convey said interest aforesaid. But, the consideration of this conveyance being less than actual value of said interest, said Hezekiah Winn reserves his life estate in said land and the right to lease same. And the said Hezekiah Winn does further covenant and bind himself, his heirs, executors, and representatives, to warrant and forever defend the title to said one-half interest in said land aforesaid to the said Dorothy Strickland against the lawful claims of all persons whomsoever.
“It is further agreed by and between the said Dorothy Strickland and Hezekiah Winn that, inasmuch as the said Dorothy Strickland receives an income annually from above-described property, and pays less than the actual value of same, that in the event that Dorothy Strickland dies before Hezekiah Winn, this deed shall become null and void, otherwise remain in full force and effect, and Hezekiah Winn binds no part of his estate, except the above-deseribed property, to the perfecting of this deed.’’
Mrs. Strickland’s copy was the same as Winn’s throughout, except that it did not contain, and there was omitted therefrom (13 lines on Winn’s original), the concluding portion underscored or italicized above. Plaintiff and defendant were the only witnesses present while they were endeavoring to formulate a transfer satisfactory to each, and they flatly contradict each other as to what took place. Winn says he refused to sign without the disputed portion being included, and would not have done so otherwise; while Mrs. Strickland is equally ¿s positive that she refused to agree to that stipulation and also would not have signed with it in the act. The fact remains, however, that both were in her handwriting and were signed by her and Winn.
It is admitted that Mrs. Strickland agreed not to file the transfer for record, except in event of Winn’s death, or some other contingency rendering it necessary for her protection.
Early in 1913 Winn left his home in Jefferson Davis parish, intending to go to Houston, Tex., on business, but says thereafter he had a complete mental lapse, and , remembers nothing that took place until he recognized a former acquaintance on a street car in the city of Honolulu, Hawaiian Islands ; that his mind again became blank, and he remembers nothing more until he found himself in Hongkong, China; that his mind again failed, and he next found himself on a ship in mid-ocean, working his way back; there was a fourth lapse, and he found himself again in Honolulu, which was followed by a fifth, at the end of which he was in San Francisco, Cal. This condition covered-a period of several weeks.
In the meantime Winn’s family and friends had become alarmed, and it was generally believed that he had either committed suicide or met with foul play in some way. His creditors, several in number, became uneasy and started proceedings to protect their interests. Mrs. Strickland, who lived in Greenbrier, Tenn., came to Louisiana, and after consulting a lawyer, her counsel in the present case, placed on record her copy of the transfer from Winn. Winn finally returned to his home in the early summer of 1913 and found the act on record. An acrimonious correspondence ensued between the parties, but nothing ever came of it to change the status of things.
At the time of the execution of the. transfer from Winn to Mrs. Strickland there rested upon the entire plantation a mortgage (which had been extant since 1907) in favor of one Amanda Miller securing a note for $3,000, signed by both plaintiff and defendant, and on March 2, 1915, the holder thereof instituted suit thereon via ordinaria, Winn confessed judgment, Mrs. Strickland was cited through a curator ad hoc, and on May 8, 1915, the plantation was sold and bought in at execution sale by Mrs. Strickland for $7,000. On the same day Winn filed this suit. '
Plaintiff first charged that the act was a pure simulation, made to protect defendant against a damage suit with which it was *241thought Winn was threatened, and sought to annul the deed; hut, as heretofore indicated, that claim was subsequently abandoned, and he now seeks only to have recognized the usufruct and reversionary clauses.
Defendant Mrs. Strickland averred that the act was intended merely as a mortgage or pignorative contract to secure her against loss on account of the Miller mortgage note, amounting to $3,000, of which she was a maker (though concededly the entire debt was that of Winn alone), and to secure other indebtedness to her by him aggregating about $2,000. However at the time of the transfer she admits she surrendered the notes representing the $2,000 to Winn, and which does not seem consistent with the idea that the, conveyance was being made to secure them.
Opinion.
With respect to the controversy as to which should be held to have been the contract of the parties, the one with or the, one without the reversionary clause, we think the situation is no different from \vhat it would have been if there had been but one act, with all of the stipulations written in it.. The two documents which the parties signed at one and the same time were intended, and were, in fact and law, but one agreement, and must be construed together. The testimony of the two only witnesses is so directly conflicting that one offsets the other, and we are compelled to construe the matter as if we had .only the documents before us. Under this view, the parties, having signed both as one, are conclusively presumed to have known what was in them, and to have consented to all of the terms. Davis Bros. Dumber Co., Limited, v. Franks, 146 La. 803, 84 South. 101. The one does not contradict, but merely supplements the other, and can be readily construed together as one entire contract. We therefore conclude that the reversionary clause was a, part of the agreement and binding upon the parties.
The next question is as to the effect of fhe sale under the Miller mortgage and judgment and the purchase by Mrs. Strickland of the property. Here, again, the testimony of the two only witnesses is directly conflicting. Winn says the act of May 31, 1912, was executed to protect Mrs. Strickland against a threatened damage suit against him, while she says it was intended as a security as above outlined. Admittedly the recited consideration of $5,000 cash was not paid. In view of the extraordinary and confusing state of the evidence, we can see no 'greater reason for believing the one any more than the other, and we think the safest course, and the one most consistent with the terms and stipulations of the act itself, is to construe it as a sale. If it was not a sale, in which the $2,000 Indebtedness to Mrs. Strickland by Winn was a part of the consideration, why did she surrender to him the notes representing that amount? And, again, why would there have been any necessity for reserving a usufruct in property which he really owned, to say nothing of the reversionary feature. The act itself recites that the price stipulated was less than the value of the property, and that this was the reason for the reservations. We also think the record shows that the property was really worth considerably more than the price paid.
We conclude, further, that the remainder of the purchase price above the $2,000 which Winn owed Mrs. Strickland, was the $3,000 due Mrs. Miller, and that, by acquiring the property, she likewise assumed the obligation of paying the debt, as a part of the consideration. Whether the usufruct and reversionary rights be construed as a grant or reservation, we think the duty was equally upon her to pay the Miller debt, and not permit the property to be sold. If it had been bought in by a third person, Winn’s rights would undoubtedly have been lost, since the mortgage antedated the sale, and *243lie was, as to the mortgagee and third persons, still a maker of the note; but, in the view we have taken, he would have still had his action in damages against Mrs. Strickland. However, inasmuch as she bought the property in and paid the price in satisfaction of an obligation which she herself owed, it amounted to nothing more than paying the debt. Article 2443, R. C. C. ; Scott v. Leonard, 106 La. 317, 30 South. 841. Therefore the usufruct and reversionary rights in Winn’s favor remained unaffected.
No. 22770.
This brings us to. a consideration of the case of Learcus Strickland and Wife v. Hezekiah Winn, which was consolidated with that of Winn v. Strickland, above disposed of, for the purpose of decision in this court.
This was a suit by Mr. Strickland, as the head of the matrimonial community, and in the alternative by Mrs. Strickland, if it were found that she owned the plantation as her separate property, in which certain movable property was sequestered, and the value of other property alleged to have been removed or destroyed by Winn was sued for, and in which he was further enjoined from interfering with or trespassing upon the premises, upon the theory that either the community or Mrs. Strickland had become the unconditional owner of the plantation at the execution sale, free from any rights or claims of Winn whatsoever. There was also a demand for damages, for rents, etc.
The lower court, upon the theory that the plantation belonged to Mrs. Strickland under the execution sale, freed from any rights of Winn, sustained the seizure, gave judgment for the property removed and destroyed, allowed a small amount for damages, found that there was no rent due, reserved plaintiff’s right to sue for certain items, gave judgment for $100 money borrowed, and perpetuated the injunction. • Winn appealed.
However, the conclusion which we have reached with regard to the usufruct or life estate still existing in Winn’s favor destroys the foundation upon which that judgment rested; i. e., that the immovables by destination had passed to Mrs. Strickland under the execution sale of the plantation. A usufructuary has the right to use the things subject to the usufruct, as he may see fit (except that he cannot alienate the immovables), with the right in the owner to exact security, unless it be waived in the act granting the usufruct. -C. C. art. 559. But this requirement does not apply where the usufruct has been reserved by a seller. C. O. art. 560. However, if the usufructuary abuse or waste the property subject to the usufruct, the owner has the right to bring his appropriate action for relief. C. C. art. 621. The usufructuary also has the right to offset any damages which he may cause by the improvements which he was authorized by law to make. O. C. art. 595.
In any event this is not an action in which any rights as between the owner and usufructuary may be determined. It was brought as owner against an alleged trespasser, and whatever rights the owner may have must be reversed and relegated to another suit. Then, again, the usufruct was imposed upon an undivided one half of the property only, and Mrs. Strickland’s claim for an accounting for the other half of the fruits and revenues or for the rental value of one-half of the property must also be reserved.
As to the claim of $100 for money loaned, plaintiff is entitled to recover.
As pointed out by the lower court, we do not think that either Mrs. Strickland or her husband, Learcus Strickland, is in a position to say that the property was not her separate estate. The husband authorized her to purchase the plantation as her separate property, and signed several acts in which he *245recognized it as such, and authorized and permitted her to deal with Winn in regard to the property as her own, and the estoppel pleaded was properly maintained. Maguire v. Maguire, 40 La. 579, 4 South. 492 ; Fireman’s Ins. Co. v. Hava, 140 La. 638, 73 South. 708. See La. Dig. vol. 4, p. 918, § 98, verbo “Marriage.”
For the reasons assigned, the judgments appealed from are annulled and reversed, and it is now ordered, adjudged, and decreed that there he judgment in favor of Hezekiah Winn and against Mrs. Dorothy Strickland and her husband, Learcus Strickland, recognizing and sustaining Ms usufruct or life estate in an undivided one-half of the Oaks plantation, particularly described in the act of May 31, 1912, filed and of record in Conveyance Book No. C, on page 557, of the Records of Jefferson Davis Parish, and further recognizing and sustaining the right of said Winn to have the said undivided one-half interest revert to him in full ownership in event of the death of the said Mrs. Strickland before that of Winn, in reconvention, and that Mrs. Dorothy Strickland and husband recover of the said Winn judgment in the sum of $100, with legal interest from July 1, 1913, until paid, reserving to Mrs. Strickland her appropriate action for any waste or abuse of the property subject to the usufruct, and for an accounting for the undivided one-half of the fruits and revenues or for the rental value of one-half of the property of the plantation, and that she pay all costs.
O’NIELL, J., dissents, being of opinion that both judgments should be affirmed.