2 La. 306 | La. | 1831
delivered the opinion of the court.
The two first named defendants are sued as maker and endosser of a promissory note, given for the price of a lot, secured by a mortgage on the premises. Gordon, the third defendant, who purchased the lot at a sheriff’s sale for taxes, is charged with having combined with the maker of the note, for the purpose of defrauding the plaintiff, and causing the lot to be sold for taxes pretended to be due, when Gordon purchased it for the taxes and costs only, in a sale which is averred to be fraudulent. The petition concludes with a prayer for judgment against the maker and endorser, and that the plaintiff’s mortgage may be declared to be superior to Gordon’s claim; that the sale of the lot to him may be declared to be fraudulent and void; and that it may be decreed to be sold to satisfy the plaintiff’s demand.
The general issue was pleaded : there was judgment against the maker and endorser, and in favour of the other defendant. The plaintiff appealed.
The statement of facts shews, that the signature of the
The appellee’s counsel has urged that, if the plaintiff has a claim superior to the purchaser’s, he ought to have exercised it in an hypothecary action; the sale of mortgaged premises, not authorizing the mortgagee to demand that it be cancelled, but only that, notwithstanding it, the premises be sold to satisfy him — that the lien of the State for taxes was superior to the plaintiff’s mortgage. — 2 Moreau's Digest, 456, sec. 20.
It does not appear to us that the District Court erred. The rescisión of the sale was asked on a charge of fraud, collusion and combination, between the defendants. On this, the burden of the proof, lay upon the plaintiff. Fraud must be proved. Till some evidence, from which it may be held to result be administered, the party against whom it is alleged, cannot be called on to disprove it. Here irregularities, in the sale, on the part of the sheriff, are alleged— these may affect the sale, but do not show any fraud on the part of the-defendant. The issue is fraus vel non, and can
It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed with costs, aamiaaflgiiwit