Prudence v. Bermodi, 1 La. 234

Prudence v. Bermodi

1 La. 234 | La. | 1830

Martin, J.

delivered the opinion of the court.

The plaintiff a slave, claims her freedom from the heirs of her former owner. There was judgment for the latter and she appealed.

The record shows she was once the property of the defendant’s mother in Hispa-tiolia, whom she followed to New-Orleans. That her then owner married Batifol, who afterwards sold the plaintiff to Malocher, and afterwards, Batifol being dead, Malo-cher sold her to her former owner, she stipulating she should be free on the vendee’s death.

Those who are not parties to a sale, may prove its simulation ¡by parol.

The defendants contend that Batifol’s sale to Malocher was simulated,and had it been a real one, could not have transferred their mother’s right to the vendee without her concurrence. That Malocher’s sale to their mother was also simulated, and in fraud of their rights as the legitimate children and forced heirs of their mother, who had no property but said slave, and some wearing apparel of very little value.

Batifol’s sale is ofthe*29th of July, 1814, Malocher’s of the 18th of December, 1828. The slave always remained with the defendant’s mother from the time of their arrival in New Orleans till the death of the latter.

Malocher was sworn as a witness for the defendants, and proved both conveyances to be simulated. A bill of exception was taken to his admission. We think the judge did not err. Neither the defendant nor the mother were parties to the first alienation, which was made without her authority, and it cannot be imputed to her, as it is shown that she did not take a counter title. As to the second alienation, from which a ratification of the former is attempted to be implied, if such was the intention of the de*241fendant’s mother, it was an act in fraud of their rights, the simulation of which they may be admitted to prove by witnesses, because as they were not parties to it, it cannot he imputed to them they did not take a counter letter.

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Further, they have pleaded that their mother had no property, but the slave and some wearing apparel of but little value. Ifthere were other articles of property, it behooved the plaintiff to show it, that it might appear that the value of the slave does not exceed the part of her estate of which the mother might dispose. The emancipation of a slave is a donation of her value to her.

It is therefore ordered, adjudged and decreed, that the judgment of the parish court be affirmed with costs.