#### AGURS v. PUTTER. *

No. 3869.

Court of Appeal of Louisiana. Second Circuit.

Nov. 18, 1931.

*641John B. Files, of Shreveport, for appellant.'

Arthur A. LeRosen, of Shreveport, for ap-pellee.

*

Rehearing granted December 9, 1931.

McGREGOR, J.

On or prior to November 9, 1897, Allec Putter, the defendant herein, borrowed from the plaintiff, W. C. Agurs, the sum of $30. To secure the payment of this sum Allec Putter executed an act of sale wherein he conveyed to the plaintiff, W. C. Agurs, lot 42 of ten-acre lot 14 of the city of Shreveport, and the consideration was stated to be $30 cash in hand paid, the receipt of which was acknowledged. Written in the deed was the following special clause: “It is agreed that the said Putter shall have the right to redeem said property at any time within three months from date *by*paying to said Agurs in cash the sum of "$30.00.”

Putter remained in possession of the property, and it is admitted that the object of the so-called act of sale was to secure the payment of the money loaned. The sum loaned was not sufficient to have been considered a serious consideration for the property.

Fifteen years later, on January 6, 1912, while Putter was still in possession of the property, and without his knowledge or consent, Agurs conveyed it to the Douglas Island Land & Improvement Company, Limited, a corporation of which he was the principal stockholder, manager, and president. The purported consideration was $300 cash, but, as a matter of fact, nothing was paid by the company.

Then "ten years still later, on May 6, 1922, W. C. Agurs, acting in his capacity as president of the Douglas Island Land & Improvement Company, Limited, reconveyed the property to Allec Putter. In the act of sale, which was in the form of a credit deed retaining a vendor’s lien and special mortgage, the purported consideration was stated to he $500, with $50 of this paid in cash at the time. A note of even date with the sale was written up for $450, due one year after date, on May 6, 1923, with Allec Putter’s name signed on it both as maker and indorser in blank. The act of sale and mortgage also purports to have been signed by Allec Putter as vendee and mortgagor. In every case Putter’s name was written 'by W. C. Agurs, and purports to have been signed by “his mark.” On the back of this note two alleged credits are made in the handwriting of W. C. Agurs; namely, July 18, 1923, $50; September 22, 1925, $41. On May 5, 1928, this suit was filed, and on May 8,1928, it was personally served on Putter. It is a suit to foreclose a mortgage via ordinaria, based on the above-named $450 note. In his original petition the' plaintiff, W. C. Agurs, alleges that he is owner of the note sued on *“for valuable consideration before maturity.”*(Italics ours.) In an amendment to his original petition he alleges that: “Plaintiff shows that the payments credited on the said note herein sued on, were made to plaintiff by said Allec Putter, defendant herein; *plaintiff shows that at said time, plaintiff was acting as agent for Mrs. M. D. Agurs, since deceased, then holder and ovmer of the said notes for value in due course.”*(Italics ours.)

The prayer of plaintiff is for judgment on the balance alleged to be due on the note said to be $439.40, with 8 per cent, interest from July 26,1924, and 10 per cent attorney’s fees and for recognition of the vendor’s lien and privilege and special mortgage on the property described above.

Before answering plaintiff’s original and amended petition, the defendant filed a plea of five years’ prescription, which was referred to and tried with the merits of the ease. In his answer he denied the validity and genuineness of the note, and on trial denied all knowledge of it. He alleged the origin of his title to the property in question, and explained how the record title was conveyed from him to the plaintiff on November 9, 1897, stating that on that date he was indebted to the plaintiff in the sum of $30,, and that he executed an instrument which he thought was for the purpose of securing the payment of said amount; that he always remained in ’ possession of the property; and later learned that the instrument was in the form of a sale with the right of redemption reserved. He alleged further that the purported transfer of the property by the plaintiff to the Douglas Island Land & Improvement Company, Limited, was invalid, for the reason, that the plaintiff had no right or interest in the said property, and that the said company, of which the plaintiff was the president, owner, and manager, acquired no rights in the said property, and that' the alleged transfer was simply a transaction 'by the plaintiff with himself, and that no consideration was passed or title conveyed, and that therefore the entire transaction was fraudulent. With reference to the transfer to him by the Douglas Island Land &• Improvement Company, Limited, in connection with which the note sued on was identified, he alleges that he cannot read or write and that he did not intend to execute a vendor’s lien or mortgage on his property; that he was never indebted to the plaintiff in any sum except the original $30, to secure which he gave a deed to *642Ms property, which amount had long since been paid. '

On trial in the lower court the defendant’s plea of prescription was overruled, and judgment was rendered in favor of the plaintiff as prayed for. Erom that judgment the defendant has appealed suspensively.

On the Plea of Five Years’ Prescription.

The due date of the note sued on is May 6, 1923. This suit was filed and citation issued on May 5, 192S, and the defendant was personally served on May 8, 1928. Counsel for plaintiff, in opposing the allowance of this plea of prescription, contends that, since the suit was filed on May 5, 1928, five .years’ prescription had not accrued from the alleged maturity of the note, May 6, 1923; that it is the date and act of filing the suit that interrupts prescription and not the date and act of service of the citation by the sheriff on the defendant. In his brief he says: “While the general understanding is -that citations must be served before an interruption of prescription occurs, as far as we have been able to find there is no positive holding to that effect by the appellate courts.”

The answer to that statement is found in article 3518 of the Revised Civil Code, which reads as follows: “A legal interruption takes place, when the possessor has been cited to appear before a court of justice, on account either of the ownership or of the possession; and the prescription is interrupted by such demand, whether the suit has been brought before a court of competent jurisdiction or not.” Article 3518 (3484), Revised Civil Code.

Under the plain letter of this provision of the law and of the decisions of our courts interpreting it, the irresistible conclusion is that the simple filing of a suit and the issuance of a citation. and its delivery to the proper officer will not constitute a “legal interruption” of prescription. This does not take place until the citation has been “served.” Counsel is confused by a line of decisions to the effect that, even though this citation is defective in some ways, it still may be sufficient to interrupt prescription. But there must always be a service, and, if the service is after the " expiration of the prescriptive period, it is ineffective, even though the suit may have been filed and the citation issued and delivered to the proper officer before its expiration. So that in this case, unless prescription was interrupted in some other way than by the filing of the suit, the plea will have to be sustained.

But plaintiff alleges that prescription was interrupted by two payments shown to have been made in the sums of $50 and $41 on July 18, 1923, and September 22, 1925, respectively. On the trial of the case defendant denies all knowledge of the note or its existence. He positively denies having made the payment of $50 at the time that the alleged note is said to have been given. He positively denies having made either of the payments referred to. The plaintiff, of course, is just as positive that the payments were made. Unless there is some corroboration of plaintiff’s testimony, it must be held that he has not established his position with that degree of legal certainty that is required by law. To corroborate his statement with reference to these two payments, two former bookkeepers of the plaintiff were produced as witnesses. The most that they could say was that they remembered that at some time during the period of their employment by the plaintiff the defendant came to the plaintiff’s office and had some kind of financial transactions with him. This testimony is too vague and indefinite. Besides, plaintiff’s own testimony is rather in conflict with the pleadings and one of the notations on the *back of the note. In*plaintiff’s petition, he alleges that, at the time of the two payments shown on the note, it was the property of Mrs. M. D. Agurs, whereas in his direct examination by his own counsel he states that the note was his property at the time the alleged payments were made. He also states that both payments were made to him personally, but on the back of the note, in the plaintiff’s handwriting, it is stated that the second payment was made to Mrs. M. D. Agurs. In view of this state of the testimony, we cannot hold that the plaintiff has established the two payments alleged to have been made by the defendant, on the note, and therefore the plea of prescription filed by the defendant is sustained.

In view of the fact that we have sustained the plea of prescription filed by the defendant, it becomes unnecessary to consider the case further on its merits.

For the reasons assigned, the judgment appealed from is hereby annulled, reversed, and set aside, and the demand of the plaintiff dismissed at his cost.