Fennessy v. Gonsoulin

11 La. 419 | La. | 1837

Bullard, J.,

delivered the opinion of the court.

The plaintiff alleges that he is a judgment creditor of Sebastian Castigo, deceased, insolvent; that the present defendant, his wife, had entered with him into a fraudulent combination to place his property beyond the reach of his creditors, and particularly of any execution which might issue on the judgment in favor of the plaintiff; that under the false pretense of having brought into marriage the sum of four thousand two hundred dollars, partly in her own savings, partly in a sum of six hundred dollars, to be paid shortly after the marriage, and a tract of land, and partly in a donation of two thousand four hundred dollars, from Madam •Debouclet, which, he avers, never was paid, although the payment is acknowledged, for fraudulent purposes in the marriage contract, she had recovered a judgment against her said husband for the full amount of four thousand two hundred dollars, which had been satisfied by setting over to her at its appraised value, all the property of her husband ; that the tract of land which she had brought into marriage, estimated at six hundred dollars, had been set over to her in part satisfaction of her judgment, estimated only at one hundred dollars. The plaintiff alleges, that this judgment to which he was not a party, is null, and he prays it may be annulled on account of the fraud and collusion between the parties, averring at the same time, that the husband had never received the several sums specified in the marriage contract. The petition concludes with a prayer for a judgment for two thousand dollars damages, and general relief.

In an amended petition the plaintiff further prays, that the defendant’s judgment against her husband, and all proceedings thereon, be annulled, or that the land so received by her at one hundred dollars, be decreed to be sold and its proceeds after paying her one hundred dollars, applied to pay the plaintiff’s judgment, or that she be adjudged to pay him five hundred dollars, she having, even supposing no fraud to have been committed, received that sum over and above what was due her by her husband. This amended petition also concludes with a prayer for general relief.

The defendant denies her liability to pay any debt of her late husband. She alleges, that the plaintiffs had full notice of the claims she had upon her husband by her marriage contract, and that notwithstanding the opposition of the plaintiff and other creditors, she obtained a judgment on the 24th of October, 1824, against him, and that in pursuance thereof, the parish judge, assisted by two experts, had set over to her, property to the amount of her claim, and that the judgment is conclusive upon the plaintiff. She further pleads the prescription of one year.

Where the object of a suit is to avoid a judgment and the assignment of property under it to the parity, as being in fraud of the rights of other creditors of the judgment debt- or, it is to be regarded as a revocatory action, by which creditors may cause to be annulled auy contract or transaction, so far as they have been injured by it. Every device, contrivance or machination, by which a creditor may have been prejudiced, may form the subject of the revocatory action. The assignment of property to the wife, in pursuance ofajudgment against her husband for her dotal and para-phernal effects,is essentially a contract, a datien en paiement, and is like all other contracts, liable to be attacked, as made in fraud of the other creditors of the husband. The action to avoid it is prescribed by one year, from the date of the judgment of the attacking* creditor.

The judgment set up by the plaintiff was rendered on the 19th April, 1824, and this suit was instituted on the 19th March, 1827. The property was set over to the defendant, on the 24th of January, 1835, in satisfaction of his judgment.

So far as the object of the present suit is to avoid the judgment recovered by the defendant against her husband, and the assignment of property to her, in pursuance of it, as in fraud of the plaintiff’s rights, we can regard it in no other light than as a revocatory action, by which, according to the code, creditors may cause to be annulled any contract or transaction, so far as they may have been injured by it. Every device, contrivance or machination,' by which a creditor may have been prejudiced, may form the subject of this action. The assignment made to the wife, of property, though made by the parish judge and experts, in conformity to the judgment, in presence and by the express consent of the parties, must be considered as essentially a contract: a datien en paiement. A contract of that description, in consideration of the dotal and paraphernal rights of the wife, is, perhaps, authorized by the code; but, like all other contracts, it is liable to be attacked, as in fraud of other creditors of the husband. The action is, however, prescribed by one year, to run from the date of the judgment which the attacking creditors may have obtained. Louisiana Code, 1989.

The evidence does not, in our opinion, authorize a judgment against the defendant, for any thing as personally liable for the debt. But the District Court thought, that as it appeared in evidence that the plaintiff had a judicial mortgage on the slaves transferred to the defendant under her judgment, he was entitled to have them seized and sold, and rendered judgment accordingly, under the prayer for general relief.

Tbe mere acknowledgment in a marriage contract of the receipt of money by the husband, is not conclusive against his creditors. Where the judgment creditor has a mortgage on the property set over to the wife,in satisfaction of hex' judgment against her husband for her dotal and paraphernal effects, the mortgage property will he liable in her hands.

No objection was made to the introduction of tbe evidence, and it is contended that, according to the well settled doctrine of our jurisprudence, parties are to recover according to their proofs. The plaintiff shows a judicial mortgage on the slaves set over to the defendant, and it does not appear to us she has shown a better right. The mere acknowledgment in a marriage contract of the receipt of money by the husband, is not conclusive against his creditors. There is no proof that the two thousand five hundred dollars, alleged to have been given as a marriage portion, ever was paid to the husband, and the tract of land for which she recovered six hundred dollars, remained her property, notwithstanding the estimation in the contract.

But the District Court went further than merely ordering the slaves to be seized and sold to satisfy the mortgage, and pronounced the nullity of the judgment and transfer. In this respect we think its judgment ought to be reformed. We are bound to consider the defendant as owner of the property set over to her under her judgment, but that the previous mortgage of the plaintiff still subsists on the slaves, and they are liable to be seized and sold to pay the amount.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed; and proceeding to give such judgment as ought to have been rendered below, it is further ordered and decreed, that the slaves Charles, Agatha and her children Eugene, Zenon and Marie, and also a mulatress named Marie, be seized and sold to satisfy the plaintiff’s judgment, to wit: the sum of eight hundred and fifty dollars, with interest, at five per cent., from the 25th of March, 1824, and costs, together with the costs of the District Court, those of the appeal to be paid by the plaintiff and appellee.