Emswiler v. Burham

6 La. Ann. 710 | La. | 1851

The judgment of the court was pronounced by

Preston. J.

Under executions in the suits of Taylor and Rayne, and J. Burnside & Co. v. John H. and G. W. Emswiler, the defendant seized four lots in the town of Bastrop, with the improvements thereon, consisting of a dwelling and storehouse, and other outhouses ; also, the furniture in the dwelling-house and a stock of merchandise in the storehouse; also, a twelve months’ bond on Chelsey Johnson, with security for upwards of two hundred and twenty dollars, as the property of the defendants. The seizure was made on the 12th of February, 1850.

On the 6th of March, 1850, John E. Emswiler brought this suit against the sheriff for all the property seized, alleging that he was owner of, and in the peaceable possession of the same, until seized by the sheriff. The sheriff called the plaintiffs in the executions in warranty. They answered substantially, that the property seized belonged to the defendants in the executions, and to G. W. Emswiler, ono of them; that a pretended sale from G. W. Emswiler to tho plaintiff, dated the 19th of April, 1849, was fictitious, simulated and fraudulent, and entered into for the purpose of defrauding the creditors of the defendants in execution, and particularly the plaintiffs in the executions; that G. W. Emswiler, the vendor, was, at the time of the sale, insolvent to the knowledge of the plaintiff; that there never was any delivery of the property purchased by the plaintiff from the defendants in execution, or any consideration paid for the same ; that all Ihe transactions between them and the plaintiff, by which he pretended to be owner of the property seized, were simulated, and that he held it for their debtors.

We adhere to the doctrine laid down in the case of Erwin v. The Bank of Kentucky, 5th Ann. 1, that the chapter of the code regulating the revocatory action, is not applicable to cases of simulation, and that in those cases the sheriff may seize, notwithstanding the apparent transfer of tho property seized by the defendant in execution. That an action is necessary to annul a real transfer of property, but for a fraudulent purpose simulation does not transfer the property at all, and it is not necessary to annul the mere paper pretence of title. Simulated transfers of property may be, for a lawful purpose, as to give credit to the vendee to enable him to raise money, or other purposes rendering tho property liable to third persons, whilst it is perfectly understood between the parties, perhaps even by a counter-letter, that it remains the property of the vendor. But simulation is generally used for an unlawful purpose, and most frequently to defraud the creditors of the vendor. Fraud may, therefore, always be proved in support of the allegation of the simulated transfer of property, by those interested to establish the simulation. -

We have perused, with care, the testimony in this voluminous record, and have come to the conclusion, that the property seized and sold by the sheriff, belonged to the defendants in the executions, and was held by the plaintiff, the greater part ofit, for G. W. Emsvnler, and partly for the firm.

The defendants in execution came to Bastrop in 1846, and established themselves as merchants. G. W. Emswiler, also practiced medicine, and appeared to have the principal means. He bought the lots in controversy, and purchased or made the improvements. He was a man of a family, lived in the dwelling-house, and owned the furniture, also three slaves, one of whom was his cook, and another a nurse. The plaintiff arrived in the country a year or two after-wards ; was a nephew of the doctor, a very young man, and was employed as a clerk in the store, and it is not shown that he had any means. On the 19th of April, 1849, George W. Emswiler sold to him, in the night time, and at his house, though a notary public and witnesses were called, the four lots of ground, his dwelling-house and kitchen, storehouse and "stable, and all other improvements, a female slave and a mortgage upon two other slaves for seven hundred and fifty dollars. The sale purported to be made for the consideration of two thousand dollars, thirteen hundred dollars of which were counted down in cash, and a note of the vendee for seven hundred dollars, payable in twelve months. The lots and houses were, at the time, under seizure at the suit of the State of Louisiana, for $750. The suit of Burnside Sf Co. was at issue, on a note for $1753, with eight per cent interest; that of Taylor and Bayne was pending; that of Dwight and Trowbridge for $1375, with interest at eight per cent from October, 1847; that of Pinckard and Henderson for $967 and interest. The lots, dwelling-house and improvements, the effects of the store and furniture were appraised at $3255. These facts alone, induce us to conclude that G. W. Emswiler was totally insolvent, as it is not shown that he owned any other property of consequence.

As tho plaintiff claims even his furniture, and bought his house servants, and as small claims bofore a justice of the peace were transferred to him, we take it for granted he bought everything he had. The sale of all his property, real and personal, when in a state of total insolvency, was a transfer out of the usual course of business, and when attacked, it became the vendee to establish its reality by-evidence. Scott and others v. Rush, 2d Ann. 266. The plaintiff has not satisfied us by ovidenco that tho salo was real. We do not believe that the $1300, used on the night of the sale of the real property, belonged to him. He had but recently arrived in the country; was very young; had been employed as a clork in a very small store of his insolvent uncle, and shows, satisfactorily, no other means of purchasing everything belonging to his uncle and the mercantile firm.

It is true, that in the suit of Pinchará and Henderson, to set aside the sales, he filed his answer on the 22d of November, 1849, alleging, among other things, that when he came to the parish, a short time since, George W. Emswiler was indebted to him in the sum of about $3000, but he furnished no proof of tho fact, and if it had been so ho would have given him that debt for all his property, and not$1300 in money, and his note for $700, payable in twelve months. Tho evidence satisfies us that George W. Emswiler and his family, remained in possession of the dwelling house, servants and furniture after the pretended sale, just as before, and that the plaintiff boarded with them, and not they with tho plaintiff. George W. Emswiler exercised the same control over the store after as before the sale. He was about removing the store from its position from one to another of the lots, nnd ho continued to improve and beautify the premisos. He exercised the same control over the small debts he purported to have transferred before a justice of the peace, after as before their transfer. He was afterwards forced to abandon tho property and leave the State, on account of an indictment for perjury. The plaintiff then left the dwelling-house and went to board elsewhere. If everything had been his, he would probably have kept his house-servants, and lived at home, as before.

The fact that the vendor remained in possession of the property, and exercising control over it for six months after the sale, raised the presumption, as to third persons', that the sale was simulated, and rendered it necessary for the vendee to produce proof that they were acting in good faith, and to establish the reality of the sale. Code, article 2456. The fact that the vendor afterwards absconded from the country and left the property in the possession of the vendee, does not remove the presumption of law that the sale was simulated. It was still incumbent on the vendee to establish its reality. Even in abandoning the property, which he could not carry away from his creditors, two circumstances occurred which impeach the reality of the sale. He took with him, or caused to follow him, the servants, without any opposition from the plaintiff, who had bought one and, at least, had a mortgage upon two others to the amount of seven hundred and fifty dollars.

Another circumstance is proved to our satisfaction; that George W. Emswiler endeavored, after the pretended sales, and just before he absconded, to securo the property further to himself, by artfully and unknown to the attorney, who was deceived by a fictitious letter from abroad, causing a suit to be instituted against himself, on a fictitious note, in the name of a fictitious person, intending that a false judgment should be rendered and recorded against him, so as to bind the property.

All these things appear in the record, and others corroborating the charge of simulation in the transactions between the plaintiff and the principal defendant in execution. The proof of some of these things were opposed, particularly tho acts of G. W. Emswiler in removing the slaves from the State, and his declarations in regard to them. There is sufficient unexceptionable evidence to sustain the verdict, without considering this evidence, but we concur with the defendant’s counsel, that to prove simulation, which it is difficult to ferret out, great latitude must be allowed, and the party attacking the simulated sale, may show acts and conduct, of both vendor and vendee, in everything that can have the least bearing upon the sale, so as to arrive at the true intentions of the parties, and to lift the veil under which truth lies concealed.

These views, on the merits of the case, renders it unnecessary to examine the bill of exceptions to the charge of the judge, except to say, that we do not consider that, he alluded to the facts further than was necessary to explain, clearly, his views ns to the law. The case being against the plaintiff withouttheevidence, with regard to which there is a controversy,- it should not be remanded.

The judgment of the district court is affirmed, with costs.