(109 So. 142)

No. 27473.

#### DARDEN v. KLINE.

(May 31, 1926.)

*(Syllabus by Editorial Staff.)*

1. Vendor and purchaser &wkey;>3(4) — Sales; assignment of interest in building by defendant to plaintiff, defendant to have right to redeem within 30 days, held a sale, and‘not mere promise to sell.

Contract by which defendant assigned all his interest in a building to plaintiff, who was to pay for and acquire title to the lot on which building stood and discharge outstanding bills against building, and defendant was to have right to redeem within 30 days, *held*a sale of the building, and not a mere promise to sell.

2. Vendor and purchaser &wkey;>45 — Sales.

In action to eject defendant from building, interest in which’he had assigned to plaintiff in. consideration of performance of certain acts by plaintiff, evidence *held*insufficient to raise issue of fraud.

Appeal from Civil District Court, Parish. of. Orleans; Porter Parker, Judge.

Action by A. G. Darden against Mason Kline. Judgment for plaintiff, and defendant appeals.

Affirmed.

See, also, 159 La. 793, 106 So. 307.

Hiddleston Kenner, of New Orleans, for appellant.

Terriberry, Rice & Young and Andrew R. Martinez, all of New Orleans, for appellee.

ST. PAUL, J.

On January 28, 1924, defendant executed and delivered the following written instrument:

> “Por value received I hereby assign to A. G. Darden, alí my right,' title and interest in a house at No. 3439-3441 Audubon street, just completed by me, and built on Lot C [in the *619square] bounded by Edenburgh, Olive, Upper Line and Audubon streets.

> “It is understood that A. G. Darden is to pay the Darden Lumber Company’s bill for $1,425.-57; the [price of the] lot, $500; and other bills not in excess of [another] $500 *at the time he takes title.*[Italics ours.]

> “It is further understood that I [Mason Kline] am to have the privilege of *redeeming*this property at any time up to 30 days from today, *provided*I pay the Darden Lumber Company’s bill and such expenses as A. G. Darden may have incurred towards *financing and talcing title.*[Italics ours.]”

I.

On March 27,1924, A. G. Darden purchased *the lot*aforesaid from (through) the Savings and Homestead Association; and on January 29, 1925, he brought this *petitory*action to eject from said premises the defendant who was then (and is now) in physical possession thereof. The defense set up is (1) fraud; (2) the general issue; (3) that the written instrument above quoted is *not a sale,*but only a promise of sale, and conveyed no title to plaintiff.

II.

[1] The written instrument speaks for itself. It purports to he, and is, an outright and absolute sale (assignment) of the building by defendant to plaintiff, conditioned upon and in consideration of plaintiff’s paying for and acquiring title to *the lot*on which it stands and discharging the outstanding bills against the building (which was done, as hereinafter shown). And the only interest which the defendant thereafter retained in said buildipg (and lot) was the right to *redeem*within 30 days (which he did not do or even offer to do, as hereinafter shown).

III.

[2] Upon the issue of fraud, and the general issue, the entire evidence in the case consists of the testimony of plaintiff, of which the substance is as follows:

> “Question: Did you purchase the property [lot] known as No. 3439 Audubon street? Answer: Yes, sir, from [through] the Saving’s Homestead. * * ***Question: Will you- state briefly what was your connection with the defendant in regard to this property? Answer: Well in 1923, in the fall, the defendant came to me to buy lumber to build a house at that location, and I finally agreed to furnish it to him. After he had received the lumber and built the house, and after some months (two or three or four) I began to push him for payment, and he continued to represent that he would get the money and pay me; but he did not. After this negotiation had failed, he and I entered into an agreement whereby I would take from him an assignment of the property [building] and assume the debts against it. * * * Question: * **** Has he ever redeemed it? Answer: He has not. * * * Up to within * * * five months ago [i. e. up to the time of filing the suit] I held out to him that, if he would pay the money I was out on it, plus interest on my outlay and the costs I had gone to, he could still redeem it. * * * Question: And he has never paid that? Answer: Absolutely not; he has never offered it.”

IV.

The judgment below was for plaintiff, and appears to be correct.

Decree.

The judgment appealed from is therefore affirmed.