4 La. 257 | La. | 1832
The facts are fully set forth in the opinion of the court, delivered by
This suit is brought to obtain a judgement to avoid and annul a sale made by the insolvent to C. J. Gow, and a,
Several exceptions were pleaded in limine lites, by the counsel for the appellant, which were overruled by the court below. The first relates to the authority of that court, to appoint a curator ad hoc to represent the defendant who is absent from the state. The second, to the citation. The third is an objection to the regularity of the proceedings, on the ground that the plaintiffs had not obtained an order of the court authorizing the wife to defend herself without the assistance of her husband, who could not appear in court, &c. The fourth is a plea of prescription.
As to the first of these exceptions, we are of opinion that it was properly overruled. The defendant was absent from the state at the time the suit was instituted, and claimed
In relation to the plea of prescription, the counsel for defendant rely principally on the article 3507, of the Louisiana Code, contending that this part of the defence is under the government of the code of 1825. In this we believe they are right. But the article relied on is thought not to be applicable to a case like the present. It applies to actions of
The action given for this purpose, is limited to one year, if brought by a creditor individually, to be counted from the time he has obtained judgement against the debtor; if brought by syndics or other representatives of the creditors, collectively, to be counted from the day of their appointment. L. C. art. 1989.
In the present instance, the suit was commenced before the expiration of the year after the appointment of the syndic, consequently the action is not barred.
We must, therefore, enter into a consideration of the merits of the case, which, like most others relating to insolvents, is by no means free from doubt and difficulties. In the commencement of this opinion, we assumed as proven, the principal facts of the cause. The most important of these facts, the simulation of the sale from Brown to Gow, is established by the testimony of the latter, who was objected to as being an incompetent witness on the ground of turpitude, and not being admissible to destroy the validity of the title, which he acquired to the property, after having transferred it to another. The last of these objections to the witness would be entitled to some weight, if the transfer had been made for a valuable consideration; but being a donation, purely gratuitous, and for the purpose of effecting a transfer from the husband to the wife, her testimony, in this respect, seems not to affect the interest of any party to their contract, whose claim should be particularly protected. The incompetency alleged against him on account of his participation in the simulation by which he acquired the property under a title apparently legal, it is believed, cannot prevail under the rules of evidence laid down by our laws. L. C. art. 2260-1. In his answer, he denied all interest in the decision of this suit; and if he has any, he is called to .testify against it. We are of opinion that he was competent to testify in the cause,
The attempt to justify the honesty of the donation to Mrs. Brown, as having been made in consideration of her property which had been received by her husband, cannot, in our opinion, avail the defendant in the present case. If she has any just claims on his estate, they should be settled in the concurso of creditors; and her rights in this respect, if any she has, should be reserved to her.
It is, therefore, ordered, adjudged, and decreed, that the judgement of the District Court be affirmed, with costs, reserving to the defendant and appellant the right to pursue, in concurso, any claims which she may have against the estate of the insolvent.