Lanata v. Planas, 2 La. Ann. 544

Lanata v. Planas

2 La. Ann. 544 | La. | 1847

The judgment of the court was pron'ounced by

Rost, J.

This is a revocatory action. The plaintiff seeks to avoid three acts of mortgage, and an act of sale, from Ramon Planas to the other defendant, on the ground that they were executed in fraud of his- rights as a creditor of Planas, and for the purpose of giving an unjust preference. The answer of Presas denies the claim of the plaintiff, and alleges collusion and fraud between him and Planas. There was a judgment in favor of the plaintiff, and the defendant Presas, for himself and Francisco Alzina, another party interested,appealed.

On the trial below, the plaintiff offered in evidence two records of the court from which this appeal is brought up, in order to prove the claims upon which this action is founded. Presas opposed the introduction of those records on *545the following grounds : 1st. That one of the judgments obtained in those cases was rendered on the confession of Ramon Planas, made in open court, after Planas had filed an answer claiming a large sum in reconvention. 2d. That the defondant, Presas, has pleaded fraud and collusion between Planas and Lanata, whom he alleges are combined against him. 3d. That he was not a party to those suits, and that he knows the allegations of Planas and his answers tó be true. The court admitted the records and judgments as prima facie evidence of the claims, and the defendant Presas took a bill of exceptions.

We concur in the view taken by the judge in relation to this evidence. Under art. 1971 of the Civil Code the presumption resulting from those judgments was not, in relation to Presas, juris et cle jure. He might controvert the demand of the plaintiff, although liquidated by' a judgment, in the same manner that the debtor might have done before the judgment; but it was his duty to do so. He avers that the allegations of Planas in his answers could be proved. It was incumbent upon him to prove them. The cases in which it has been-held, that the burthen of proof was on the judgment creditor, were cases in which wives had obtained judgments against their husbands; they form exceptions to the general rule, that whoever alleges fraud must prove it. Moreover, it is clearly shown, that Presas was apprised of the claims of the plaintiff, and that it was for the purpose of defeating them that the mortgages and the sale' complained of were made.

On the merits, We concur fully with the court below'. The evidence in support of the plaintiff’s allegations is as full and satisfactory as can be desired; and the conduct of Presas throughout those transactions cannot be too severely censured. Judgment affirmed.