8 Mart. (N.S.) 445 | La. | 1830
delivered the opinion of the court. In this case the syndic sues to recover from the defendant, certain slaves described in his petition, and their hire for the time during which they have been in possession of the latter.
It is alleged that the insolvent is the owner of said slaves, as having been paid for with his money and notes, and that he was in possession of them until they were taken from him by a writ of attachment obtained by the defendant, against property of one Louis Menard, wherein they were seized, &c.
The answer contains several exceptions to the action, a general denial, and sets up title in the present possessor. The court below gave judgment of nonsuit on a trial of the merits, from which the plaintiff appealed.
The evidence of the case shows, that the slaves now in dispute, together with a tract of land, were purchased from Francois Lambert, for Louis Menard, by an assumed agency on the part of Francois Menard, his brother : the whole property was paid for by promissory notes of divers persons, endorsed
Whether the defendant, under all the circumstances of the case, is entitled to the protection accorded by law to innocent purchasers, we need not inquire; he has been so long in possession of the slaves, that he can only be disturbed by a person showing a better title than that under which he claims.
The present is, in truth, a petitory action, and the plaintiff can recover only by showing title in the insolvent. The property was transferred by Lambert, to Louis Menard, who refused to accept it, by disavowing the purchase made by his brother; and therefore never had any title to it. The claim of title in favor of Dalon, as alleged in the petition, is founded on a possession which he had previous to the seizure under Lacroix’s attachment, and the circumstance of the price having been paid out of his funds. The loan of money to pay the price of property bought, cannot of itself give title to the lender in any case; and according to our law, all sales of
1. Because simulation or fraud is not alleged in the petition.
2. Because parol proof of simulation in written contracts, is not admissible in cases where the party whose interest it may be prove it, might have taken a counter-title.
Now, if at the time when the purchase was made by Menard from Lambert, it was intended to give title to Dalon, in the slaves which were bought, although by the act of sale they were conveyed to Menard, Dalon, who it is alleged paid the price, must be presumed to have known this fact, and could have requested a counter-title. — Vol 1, 451 &. vol 4,123.
It is therefore ordered, adjudged and decreed, that the judgment of the district court be affirmed, with costs.