12 La. Ann. 249 | La. | 1857
This suit is the sequel, and we trust the final sequel, of the case of Muse, syndic, v. Yarborough et al., decided as far hack as 1838, and reported in 11 La. 521.
By the result of that suit, Elias Boatner (in whose right this action was brought) was evicted of property estimated to he worth about $27,000, of which, by the expenditure of about $5000, the creditors of the original owner, John Bostwieh, were sought to be defrauded, by means of a scheme first concocted between the present defendant, Yarborough, and the said Bostwieh, and after-wards persistently prosecuted by their confederate, EUas Boatner, deceased.
Yarborough had become security for Bostwieh to Reynolds, Byrne & Co., in the amount of five thousand dollars. His object was, first, to save this sum, and then to aid Bostwieh in defrauding his other creditors. Eor that purpose, he took a mortgage and pledge, of all his valuable property, procured from him a confession of judgment for $5,500, and made a levy upon the property mortgaged and pledged to secure this sum.
At this juncture, on the 14th January, 1834, 'the deceased, EUas Boatner, (whose administrator brings this suit) appeared with M, Boatner, and took from Ya/rborovgh a notarial transfer of all his interest in the mortgage, pledge, judgment and seizure, for which they promised to give three promissory notes, amounting to $5,164, and payable respectively on the 1st April, 1834, the 1st November, 1834, and the 1st November, 1835.
After the passage of this notarial act, EUas Boatner took control of the execution already levied upon all the property of Bostwieh, and on the 3d of February, 1834, it was adjudicated to him and his associate M. Boatner, for the price of $5,605, enough to satisfy the judgment confessed by Bostwieh in favor of Yen-borough, and by the latter transferred to Boatnm-.
Having thus, as he supposed, secured the property, Boatner, on the 15th of February, gave Yen-borough his three notes, as promised in the notarial act of the 14th January, and secured them by mortgage.
The first of these notes, it will be observed, fell due on the 1st April, 1834; but it was not paid.
On the 11th April of that year EUas Boatner was served with citation and the petition in the suit of Muse, syndic, v. Yen-borough et al. This petition in the name of the creditors of Bostwieh, who made a cession immediately after Boatner had swept off his available property, through the judgment in favor of Yarborough, distinctly charged Bostwieh, Yarborough and Boatner with having conspired to defraud the creditors of Bostwieh, through the machinery of their mortgage, pledge, judgment, transfer, Sheriff’s sale and purchase in the name of the Boatners, as the following extract will show:
■“ Your petitioner l’epresents that the said Yen-borough and the said Boatmei-s*250 well knew that the said John Bostwieh was insolvent, and intended suing his creditors as soon as he had made the arrangement with them by which, as he thought, all of his valuable property would he screened from the claims of his creditors, and knowing this fact, they assisted and participated in the arrangement.”
The petition prayed that the judgment, transfer, seizure and sale be decreed to be null and void, on account of the fraud which infected them to the injury of the creditors of Bostwieh.
Upon the trial of the suit contradictorily with Boatn&r and Ym'borough, a verdict was rendered in favor of the plaintiff generally. There was judgment pursuant to the rule, and the defendants appealed to the Supreme Court, where they seem to have made common cause in seeking to get rid of the judgment upon purely technical grounds, and not by a denial of the fraud.
The judgment of the District Court was affirmed.
Boatner's representative now sues his confederate Ym'borough to recover the price he was to pay the latter for the mortgage, pledge, judgment and seizure, which have thus turned to ashes in his hands. He contends that Yarborough warranted their existence as valid claims, and that the warranty has been falsified by the the eviction which followed the suit of Muse, syndic.
He alleges that he has paid the three notes he gave for the price. Ym'borough denies this fact, and in support of the denial produces the original notes uncancelled.
But Boatner says that the contract was in effect novated, by giving another note of $8,000 to Ym'borough, which the latter surrendered in execution under the judgment of Reynolds, Byrne S Go. against himself as surety for Bostwieh, for which he took the mortgage and pledge as an indemnity. This note of $8000 the plaintiff contends was given in lieu of the first three notes, and was bought in on twelve months’ eredit by Boatner, the maker, when it was sold under the judgment of Reynolds, Byrne & Co. v. Yarborough, and that having paid his twelve months’ bond to Reynolds, Byrne & Co., on the 27th of June, 1836, he has thus extinguished the obligation he gave as the price of the claims of Ym'borough against Bostwieh. In confirmation of this view, he relies upon the fact that Yarborough, on the 3d of January, 1837, cancelled the mortgage given him by Boatner to secure the payment of the first three notes.
If these assertions be true, as conjectured by the District Judge, they convict Boatner as a conspirator with Ym'borough to carry out a scheme of fraud after full notice.
Bor it will be observed that the $8000 note was given by Boatner to Yarborough on the 25th April, 1834, payable 1st June, 1836, and we have already stated that the petition of Muse, syndic, against Ym'borough and Boatner, to annul their transactions, was served upon Boatner on the 11th April, 1834. An innocent purchaser in good faith, after service of that petition, could not have renewed and augmented his obligations to a fraudulent vendor who had deceived him.
The District Judge says it is clear that Boatner has paid for Ym'borough the execution that Reynolds, Byrne , & Go. issued against the latter, that he has been evicted from the claims and mortgages which the latter transferred to him, and that it is but sheer justice that one who has thus paid the debt of another should be reimbursed. That Yarborough was under a natural obligation to reimburse Boatner may be conceded.
It is, therefore, ordered, that the judgment of the District Court be avoided and reversed, and this suit be dismissed, the plaintiff paying costs in both courts.