Mathews, J,
delivered the opinion of the court.
In this case, the plaintiff sues to recover from the defendants, certain tracts of land and their appurtenances, as described in his petition; and also a number of slaves and their increase, therein named. Judgment was rendered for *21the defendants, in tbe court below, from which the plaintiff appealed.
In an action by^ a vendee against tbe vendors of his vendor, who are in possession, and claim the contested premises as the original owners $ alleging that the sale by them to the plaintiff’s vendor was simulated,andhad been rescinded and re-conveyed, as appeared by two counter-letters : Held) that the question was, whether the plaintiff knew at the time he purchased, of the defects of the seller’s title, and that it was simulated, or had been rescinded.
The question of the buyer’s knowledge of the defects in his vendor’s title, as that the latter held the property by a simulated sale, is one of fact, which the jury has a right to decide, from all the evidence of the case.
The cause was submitted to a jury, and on their verdict, the judgment of the court a quo was based.
The facts of the case are obscure and hidden, as generally happens where there exists a want of good faith and fair dealing in the parties concerned in a contract.
The evidence shows that the defendants, some time in 1832, made simulated sales of the premises in question, to one Phineas Gardner, for the purpose of obtaining, through his agency, a larger amount of stock in the Union Bank of Louisiana, than they could otherwise have done, according to the provisions of the charter. Thus it is seen that the first act giving rise to the present dispute, was done in fraudem legis. Not long after these sales, the purchaser made two acts under private signature, and delivered them to his vendors, acknowledging the simulation of the sales, and that the pretended price had been refunded to him. Gardner, at the time of purchasing was in tbe employment of the sellers, and resided on one of the tracts of land, as their overseer or manager. There seems to have been two acts of sale executed by the defendants to him; one dated on the 28th of July, and the other on the 11th of September, 1832, and the acts under private signature, have reference to both deeds of sale, but were not recorded until after the sale by Gardner to the plaintiff. Their character is disputed, whether they be counter-letters or re-conveyances. The act of sale from Gardner to Wells, is authentic, and made in due form, and conveys all the right which the vendor derived from the defendants.
The main question on which the decision of the case must .turn, is, whether the plaintiff1 knew at the time he purchased from Gardner, the defects of the title under which the latter held from the defendants, viz: that the contract was simulated and had been rescinded, or was liable to be rescinded in consequence of subsequent agreements between the parties. This question is one of fact, on which the jury had a right to pass; and whether they considered the private *22acts between Gardner and his vendors, as a rescission of their contractgj or as containing a promise to re-convey, having the effect of counter-letters, is immaterial and unimportant ih relation to the correctness of their verdict, provided they believed those facts to have been within the knowledge of th© Pontiff, at the time of his purchase; for, if he had this knowledge, his situation before the court is no better than that of Gardner would be, were he plaintiff in this suit. The right °f a vendor to avail himself of a counter-letter, in a simulated sale, and recover back his property, has been considered an established doctrine in our jurisprudence, ever since the decision of the case of Griffin’s executors vs. Lopez, 5 Martin, 145. But the present case is more favorable to the persons claiming the benefit of the counter-letters; they being defendants, and in possession of the property. Whether the facts of the simulation of the sales from the defendants to Gardner, and the existence of a written agreement on his part, to re-convey to them, were known to the plaintiff, at the time he bought from the vendee, the evidence of the case does hot clearly show; but the whole of the testimony taken together, we think, authorised the jury to infer that the plaintiff was conusant of ¡the simulation and nullity of the contract by which the seller to him acquired this pretended title from the defendants.
Where the purtimeof the sale*' has knowledge title is simulated betweSen.ntheiatter and Ms vendors, the plaintiff’s situation is no better than the seller to him.
The principle is established and settled, that the first vendor has a right to avail himself of a counter-letter in a simulated sale, and recover back hisproperty. His case is more favorable, in relation to the person who purchasedfrom his vendee, when he is defendant, and in possession.
It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed with costs, &c.