The Ouachita telegraph., 1871-08-19

be bound not to transfer? If he could
not mortgage, why ask him to bind
himself not to mortgage /? The Civil
Code declares that ga creditor who is in
possession by way of antichresis cannot
have any right of preference on the
other creditOrs:' Art. 31S1. Could a
mere creditor be regarded as able to
sell, transfer or mortgage property of
which he was in possession by pledge ?
The counter-letter furthermore ex-
pressly provides-a most extraordinary
provision in q contract of antichresis-
'that when any part of said property
shall have been sold, (by whom p the
price to the extent of $247O shall be
RETAINED by said VIM. Calderwood."
The Court say, awe see in the counter
letter the real intention of the parties"
Could it possibly have escaped the
scrutiny of the Honorable Court that
here was an express clause guarantee
ing to VIM. Calderwood, under what
ever form he held possession, that the
PRICE for which the property might at
any time be sold was subject to an en-
cumbrance of $247O, and that this
amount was to be ''yetaineep' by VIM.
Calderwood out of the price, Is there
nothing but senseless verbiage, un-
meaning gasconade in this stipulation?
How was it possible for the Court,
having a proper regard for its own
reputation and for the just rights of
those who appear before it, to have
utterly ignored and even annulled so
plain a stipulation, and one that stands
uncontradicted throughout the entire
counter-letter: 1t is difficult to see
how court, intending to decide equit-
ably and protesting to manifest such
zeal in discovering the "real intention'
of parties, could SO palpably nis-apply
the principles of law and 50 palpably
| disregard the plainest covenants of a
written instrument avowedly contain
ing and calculating that intention, as
to render a decision of the nature and
character of the one under review.
We are compelled to conclude that the
Court was controlled by other consider
ations and arguments than those pro-
the written opinion of the Court.
1t was in evidence that John Cal
derwood for more than two years never
: interferred with the possession of VIM.
CaluerWood: never called upon him for
the rents and revenues, and that no
statement was found among DIR. Calder
woods papers laying any claim what
ever to the rents and revenues. This is
in accordance with the testimony of
Chief Justice Ludeling, who testified
relative to the sale-ssIt was intended
as 4 payment of the debt to VIM. CAL
derwood, with the right of taking back
the property dy paging VIM. Calder
wood the amount OF the debt IN cash..
"Wc have thus seen," say the Court,
"that the right of disposition, or pro-
prietorship, never passed out of John
CalderwoOd."
A more manifest fallacy was never
enunciated. VIM. Calderwood bound
himself not to sell, transfer or mort
gage property the right to dispose Of
which ssnever passed out'' of another,
John Calderwood, and to re-transfer,
upon a specified condition, property to
John CalderwOod which John Calder
wood never ceased to own! And all
this John Calderwood did, acting un-
der the advice of the present Chief
Justice, in order to establish a pledge
of immovables and to secure the pay
ment of a debt by usufruct!
The act of sale and the terms of the
counter-letter (only one being eXecu-
ted and that for John CtlderwOod's 5
projections, the defendant being pro-
tected by the act of sale,) tOr6M such
an Interpretation as has been given to
this transaction.
John Calderwood never intended,
and never made any pretensions, to an
interest in the rents and revenues of
the property in suit, although greatly
embarrassed in pecuniary matters.
The Court does not so much az contend
that such was his intention.
The Court say: "By another clause
in the counter-letter, VIM. Calderwood
is not to get the price,
There is no such clause as is here
mentioned. On the contrary it stipu-
lates expressly, that when any part
of said property shall have been sold,
the price to the extent of $2l7O shall
be retained by VIM. Caluerwood, and
thc remainder shall be paid or turned