No. 14,127 | La. | Nov 15, 1901
Opinion.
Defendant’s first contention is that the action brought by the plaintiff is a petitory action; that such an action can only he brought by one having title to the property he seeks to revendicate; that the instrument upon which the plaintiff declares is not a sale vesting title to the property in the possession of the adjudicatees at a judicial sale.
That it evidenced no “sale,” as no price in money is fixed as the consideration of the transfer; that it is not the sale of an immovable, as the act contains no specific description of any property, either by metes, bounds or areas.
Plaintiff’s action is not a petitory action; he does not claim that he had at the time of the institution of the suit ownership of the property, and that the defendants were in possession of it without title; on the contrary, his action admits that they presently hold title, but he urges that the judicial sale under which they claim is defective and should be set aside. The action is one to annul a judicial sale of property of which Mrs. Yiguerie was confessedly the owner at the time of the execution sale and then holding and owning it under title from the present vendees. The title which defendants conveyed to the plaintiff’s assignor is not questioned; the contention is that it was good and valid and that Mrs. Yiguerie has not been legally, divested of it.
It inay be that the judgment in this suit may shift the present ownership of the property out of the defendants into the plaintiff, but that will only be by way of consequence and result. Plaintiff’s prayer to be decreed the owner of the property and placed m possession is based upon the assumption that he will succeed in having the sale set aside.
The exact situation in this respect can be made to appear on the trial of the cause, should it be shown to be a matter of any importance.
Tn Helluin vs. Minor, 12 Ann. 124, in which defendant defended a petitory action, basing his defense upon an assignment to him of a patent to public land, in which it was declared simply that the assignment was made ‘for value received,” the court said:
“The plaintiffs contend that if the act referred to be considered a sale, it is void for want of a fixed and determinable brice; if it be considered a donation, the assignment is void, not having been passed before a notary'public and two witnesses. There cannot be any doubt-that our courts would consider the instrument invalid as a donation, and it may not be (technically considered) a sale under the Civil Code, but it does not necessarily follow that the contract itself, after its execution, is to be considered as void because it cannot be classed under the contract of sale. (Troplong Vente No. 148.) A contract is not invalid because the cause has not been proberly expressed. (Civil Code, No. 1894.)”
In Kirk vs. Kansas City R. R. Co., 51 Ann. 675, the court said:
“If there be a valid existing cause for a contract, it is immaterial that it should not fall under some contract particularly named or classified in the Code. (C. C. 1777.)” See on this same subject Walker vs. Fort, 3 La. 536; Jackson vs. Miller, 32 Ann. 432; Bonner vs. Beard, 43 Ann. 1038.
Defendants’ next contentions are that the document is of no value so far as third persons are concerned, because it is signed only by the
We are aware of no law by which a transfer, such as the instrument declared on evidences on its face, should be made by authentic act, and we know of no reason why it should, as against defendants, have been recorded. The defendants do not claim to hold the right which is declared to have been transferred by the instrument, nor to have claims in respect to it as creditors, which have been affected by non-registry. The character and effect of the transfer will have to be determined hereafter. As matters stand simply on an exception of no cause of action, we must assume it to be a legal act. Defendants have as yet shown no equities in thé premises, and there is nothing to indicate that a single right or defense which they had or have against Mrs. Viguerie could not be as effectually set up against the present plaintiff as against her. Defendants have no legal interest in inquiring into the relations between the plaintiff and his transferrer, or the motives or purposes which may have influenced them in passing the act, further than in seeing that she is not legally injured thereby. The same defenses which would have been available to defendants as against a. demand made by Mrs. Viguerie, to annul the judicial sale, appear to be open to them as against the plaintiff. They can ask no more. It is no unusual occurrence for parties to place their property and rights in the name and under the control of others, without any consideration whatever and without the intention of ownership being actually transferred.
Such acts are permissible and cannot be gainsaid, unless they carry injury to some one. A simulation is not necessarily a fraud; it is only so when injury to third persons is intended. (Gravier vs. Carrably, 17 La. 118" court="La." date_filed="1841-01-15" href="https://app.midpage.ai/document/graviers-curator-v-carrabys-7160530?utm_source=webapp" opinion_id="7160530">17 La. 118.)
Our court has Held that simulated transfers may he for a lawful purpose, as, for instance, to enable the transferree to bring suit; to raise money, etc., etc. (See 6 Ann. 710; 10 Ann. 570; 12 Ann. 622.) Parties opposing such acts must allege and show wherein they are aggrieved thereby. (Hennen, 180.)
This doctrine finds expression in repeated adjudications of this court in matters of bills and notes under a syllabus to'the effect that the “holder of negotiable paper endorsed in blank may sue, though only
Defendants urge that the right or cause of action to rescind, annul and set aside an adjudication at a judicial sale is essentially personal to the party divested of his title by that sale, and cannot be transferred to a third person having no interest in the result of the proceedings that have culminated in that sale. No one but the party thus divested, or perhaps his creditors, can exercise that right, because it is only the party who has been injured by that sale who can demand its nullity and rescission. They cite 6 Ann. 581 to 585; 12 Ann. 271; 29 Ann. 212.
The decisions referred to by defendants were all rendered after hearing upon the merits. The principles announced therein may possibly be important hereafter, but they do not find application in the present Situation of affairs. ,The doctrine therein announced is that “judicial sales ought not to be annulled, unless at the instance of a party who has a right to sue for their rescission and who can show an injury resulting to him from the sale, and without a previous offer of indemnity to the bona fide parties whose interests are to be affected by the judgment.”
In the case at bar the action is not brought by a person claiming adversely as a creditor, hut by one asserting the rights of the party who was the owner of the property at the time of the sale, and standing in her shoes as her assignee. Plaintiff’s rights are derivative through transfer and subrogation from that owner herself. It is her rights which are herein sought to be enforced through the plaintiff. She, as the owner divested of ownership through the judicial sale, had certainly a legal interest to attack it for good and sufficient reasons alleged and to be shown. Plaintiff’s allegations certainly show great injury to Mrs. Viguerie if they can be sustained by proof. One of the difficulties in the way of our sustaining the judgment appealed from is that we arc in the dark as to the exact situation of these various parties before and at the time of the judicial sale, inter se and quoad the property. These are all back of plaintiff’s petition and back of defendants’ exception of
From that standpoint we cannot affirm the judgment appealed from. The District Court should have overruled the exceptions and permitted the action to proceed according to law.
For the reasons assigned, it is ordered, adjudged and decreed that the judgment appealed from be, and the same is hereby, annulled, avoided and reversed. It is further ordered and decreed that the exceptions of no cause of action and of no right of action he overruled without prejudice; that the cause he remanded to the District Court for the Parish of Iberia, reinstated on its docket, and further proceeded with according to law.
Eehearing refused.