England v. Commercial Insurance Co.

| La. | Jan 15, 1861

Voobhies, J.

The defendant as judgment creditor of J. W. Lungdon, W. I). Bateman, Ji. Mason and 11. Moody, formerly owners of the steamboat Lucy Holcombe, caused this property to be levied upon as if it still belonged to the judgment debtors. The plaintiff who holds through these parties by virtue of a- sale duly recorded in the Customhouse, thereupon enjoined the sale.

The question presented is, ■whether this transfer be simulated ; for if it be real and sincere in point of fact, it is clear that however injurious it might be to creditors and tainted with fraud, their remedy could be reached only through a direct action in revocation.

The evidence leaves no doubt as to the facts that, immediately after the .sale, the plaintiff assumed the control and management of the boat; that he acted as the sole owner and proprietor ; that the business of the boat was carried on in his name, he being personally liable for the debts and expenses; and finally that he was actually pedd the debts, uliich, in the bill of sale, he had assumed to pay, amounting to over ten thousand dollars.

It has been argued that it is highly improbable that tlie plaintiff, being a hsli-monger at the market house, could have purchased a boat for the sum of forty thousand dollars; but, by reference to the tax roll, it appears that his real estate is assessed at nearly twenty thousand dollars ; and, besides, that his credit is good in. bank. And then the terms of the sale are looked upon as unusual; for onc-lialf of the price is stipulated to be paid in four installments running from twelve to twenty-four months, the purchaser furnishing only his individual notes. This leads ns to consider the presumption of simulation, which, tlie defendant contends, is raised in this case from the fact that the vendors remained on board of the boat in the capacity of captain and clerk. And, in this connection it is proper to add that these parties liad so officiated previously to the sale or transfer ; and that it was after the delivery of the boat that they were employed by the plaintiff in their respective callings.

Under the provisions of Article 2156, when the seller retains possession by a precarious title, this gives rise to a presumption of simulation ; aud it is then incumbent upon the parties, with regard to third persons, to show that they were acting in good faith, and to establish tlie sincerity of the contract. The last Article of the Civil Code (8522) defines the term precarious: “That possession is called precarious, which one enjoys by the leave of another, and during his pleasure. The title, which excludes tlie ownership, sncli as a lease, is also called precarious.”

Tlie question then arises whether the vendors, in the present ease, retained tlie possession of the Lucy Holcombe, and whether that possession was precarious,

*6The vendors came back on tlie boat as employees oi tlie vendee : they were charged with the administration oí its affairs, as is usually the case when parties are engaged to command a vessel or to act in the capacity of clerks. And, in point of fact, there had been a delivery from the vendors to the vendees, after which the latter engaged the former’s services. It cannot with propriety be said that the vendees retained the possession of the Lucy Holcombe ; nor that their possession as captain and clerk was precarious in the sense of the Code. They were not on board merely by the leave of the owner nor during his pleasure : they were there by virtue of a contract. Nor did they have possession to the exclusion of the plaintiff’s right of owner,ship : they had hired their sendees to him. and their possession was his possession.

There was consequently no presumption of simulation in the way of the plaintiff, but, had there been, we are not prepared to say that he has not fully rebutted this presumption, and shown the reality and good faith of the transaction.

Judgment affirmed.