Long v. Klein

35 La. Ann. 384 | La. | 1883

The opinion of the Court was delivered by

Poohé, J.

In the case of Spencer vs. Goodman & Bradfield et als., 33 Annual, p. 898, judgment was rendered in this Court annulling the sale of “ Willow Glen Plantation,” made to the defendants, Goodman & Bradfield, by John A. Klein, tbe defendant in this case, and condemning said Klein, warrantor in that case, to refund the purchase price received by him from his said vendees, with the exception of so much of the purchase price as represented the consideration of a portion of said plantation, to-wit: one hundred and fifty acres, for which the sale was maintained.

Plaintiff Long, as the transferree of Goodman’s rights to said judgment, seeks to recover the latter’s share of the purchase price, which is shown to be $5,093.78. By a supplemental petition, his co-owner of the judgment is made a party to this suit, and she prays for the same relief agaifist the defendant as may be awarded to Long. This appeal is taken by defendant from a judgment against him, in favor of Long and of Bradfield, but his defense in both Courts is levelled almost exclusively against Long’s right of recovery. His first complaint is, that liis warrantees cannot recover the full amount of the purchase price, but only a portion of the same, for the l’eason that the sale was maintained as to 150 acres of the lands in litigation in the suit for nullity of the sale.

This defense had been anticipated by plaintiff, who had alleged in his petition that he had tendered those 150 acres back to Klein, who had accepted the same, and the allegation being fully supported by. the record, that element is therefore eliminated from the case.

The defendant charges that the sale from Goodman to Long is a simulation, that Goodman is insolvent, and that so much of the purchase price as he may be entitled to recover from Klein, is compensated by the claim of Klein against him, arising from the fact that Klein and another party had bound themselves as counter-securities in favor of the securities on two appeal bonds furnished by Goodman & Bradfleld, in their appeal from the judgment in the case of Spencer vs. Goodman & Bradfleld, condemning them to pay to Carpenter, the real owner of the plantation, rents amounting to a considerable sum.

As the gravamen of this defeuse is the alleged simulation and nullity of the transfer of Goodman’s interest in the judgment against his warrantor to Long, it was incumbent on the defendant to make all the allegations and to administer the evidence which, under the law, would have been required of him as plaintiff in an action of revocation, or in declaration of simulation.

In such cases the complainant, to succeed, is required to allege and to pi'ove not only that both vendor and vendee acted with fraudulent intent and design, but that he was injured by the transaction. A stranger to a contract, showing no interest, either as a creditor or otherwise, cannot be heard with a view to annul and set aside an alleged fraudulent contract. This principle is so well established iu our law, and has been so uniformly applied in our jurisprudence, that it can now be considered as elementary. Baudin vs. Roliff, 1 New Series, 166; Monthly vs. His Creditors, 18 La. 384; Wedderstrand vs. Marsh, 11 Rob. 533; LaFleur vs. Hardy, 11 Rob. 494; McDowell vs. Cook, 10 An. 31; Wolf vs. Wolf, 12 An. 529.

The only efforts made by defendant to comply with the requisites of the law, in justification of his right to attack the sale complained of, consist of an allegation of the insolvency of Goodman, and of the knowledge thereof in Long, and of an intimation that he may become a creditor of Goodman, on account of his obligation to hold harmless the latter’s securities on his appeal bonds, without even specifying the amount of the alleged contingent claim, and without alleging that Goodman had not yet paid and satisfied the judgment for rents rendered against him in favor of Carpenter.

On the trial he made no attempt to prove the alleged insolvency of Goodman; and in support of his intimation that he was, or would eventually be, a creditor of the latter, he offered no other evidence but the appeal bonds and his written agreement to secure the sureties thereon.

Considering the vagueness of his allegations on this point; considering his failure to allege the non-payment of the judgment for rents and revenues, and considering that such claim, if it did exist, had not been definitely liquidated by tlxe judgment and could not, therefore, for want of equal dignity with plaintiff’s claim, be pleaded in recoilvention, we thiulc that the court below erred in allowing any evidence on behalf of the defendant on that part of his pleadings, and that plaintiff’s bill of exception to the ruling of the court was well taken.

Concluding, from the state of the pleadings and from the evideuce in the record, that defendant has utterly failed to show that he has been, or will be, injured by the alleged fraudulent and simulated transfer of Goodman to Long, we cannot recognize his right to thus attack this transaction.

He has been duly notified of the transfer; a judgment in favor of Long, and a payment of the same will be a full protection to him against any future claim of Goodman for the same cause of action, and hence, no injustice has been done to him in the case.

Judgment affirmed.

Rehearing l’efused.