| La. | Sep 15, 1837
delivered the opinion of the court.
This is an action brought by the¿wife and heirs of Thomas Foster, deceased, to set aside two acts of sale, one dated 5th
Levi Foster having died, the suit is instituted against his widow and heirs.
The defendants for answer, deny generally; repel the charge of fraud; plead the prescription of one year, and set up various other matters in defence, which it is not material to notice.
Soon after the petition was filed, Philo Hillyer and Gíeorge' Robbins, merchants, residing in New-York, intervened in the cause, alleging in their petition, that this action would materially affect their rights, inasmuch as they held a mortgage on several of the said slaves, as security for a debt of a considerable sum of money, due them from Levi Foster’s succession; that the slaves were duly transferred to him by his brother Thomas; deny the existence of any fraud, as alleged, and pray that the plaintiffs’ petition may be rejected, and for general relief.
The plaintiffs, in their answer to the petition of intervention aver, that the slaves were not the property of Levi Foster, and that he had no right, therefore, to mortgage them; that thé debt for which the mortgage was given, was contracted in favor of one William Seay, long before the date at which the sales took place.
The cause was submitted to a jury, who found a verdict for the plaintiffs. An ineffectual effort having been made for a new trial, the court pronounced its judgment, annulling and setting aside the sales, both with respect to the inter-pleaders and defendants. The intervenors appealed.
The record is loaded with oral and documentary evidence, all tending to prove the fraudulent nature of the transaction between Thomas and Levi Foster. The jury and court were of opinion that the plaintiffs had made out their case as charged in the petition. The only question then, arising
The first sale of the 5th May, 1830, was by act under private signature, but duly acknowledged and admitted of recor)j jn the 0ffice 0f a notary public the following day. J *- o j The second, of the 13th of the same month, was by public act, in due form of law, and both of them set forth the payment and receipt of the prices for the slaves, and in every respect wear the appearance of verity and good faith. .
. j , . , ... It is not pretended, nor is there any testimony in the recor<l showing that Hillyer and Robbins had any knowledge of the vices that tainted the transaction between the two Fosters. The slaves were delivered to the vendee, who retained them peaceably in his possession, and in December, 1830, seven months after the sales, mortgaged them to the intei'venors in order to secure the payment of a debt, the existence of which is not denied. Had Levi Foster sold the s^aves to a third person, ignorant of the nature of the sale from his brother, it cannot be doubted that the vendee’s title would have been good. A mortgage is in the nature of an alienation, and the mortgage creditor who had no knowledge of the fraud, would be equally protected with the vendee. No principiéis better established in law or moral justice, than that third persons acting in good faith, shall not be prejudiced by the frauds of others, in which they had no agency or concern.
It does, therefore, appear to us, that the mortgage executed by Levi Foster to Hillyer & Robbins, is valid in law, and affects the slaves therein mentioned, for the entire payment of their debt.
We think there is error in the decree of the court below.
It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court, so far as it relates to the intervenors, Hillyer & Robbins, be avoided and reversed, and that the plaintiffs and appellees pay the costs of appeal., -