Zacharie v. Buckman, 8 La. 305

Zacharie v. Buckman

8 La. 305 | La. | 1835

Bullard, J.,

delivered the opinion of the court.

jn phjg ca?e t.be plaintiff sues to annul a sale and conveyance of certain lots of ground, made by his debtor to the ancestor of the defendants, on the ground of simulation and fraud.

The defendants plead : 1st. Prescription ; 2d. That the plaintiff was not the creditor of the vendor, previously to the sale in'question ; and 3d. That they are the bond fide owners of the lots. Judgment being rendered in favor of the plaintiff, the defendants appealed.

The evidence appears to us' satisfactory, that Tanner the vendor, was at the time of the conveyance, a debtor to the plaintiff to a considerable amount, for which debt judgment has since been recovered, shortly before the commencement of this action. The prescription in such cases runs from the date of the judgment recovered against the debtor, and that plea cannot in this case avail the defendant. Louisiana Code, 1989.

^’s shown that Woodman, the purchaser, was a creditor of Tanner, and that this sale was made for the purpose of protecting the property against the pursuits of other creditors, Tanner being at the time insolvent, and at the same time to secure to Woodman the debt due him. A counter-letter was executed at the time of the sale, which was produced on the trial °f this case, and from which it would appear, that ’Woodman bound himself to re-convey the property, on . J r r J 7 Tanner’s paying him on or before the 22d May, 1833, the sum of one thousand five hundred and sixty-six dollars, an<^ delivering UP t0 him note f°r the balance of the apparent price of the property. Two or three days after-wards the note was given up to Woodman, as appears by an acknowledgment on the counter-letter.

It is contended by the counsel for the defendants, that this counter-letter, taken in connexion with the conveyance, constitutes a real sale, with a clause of réméré or right of redemption, within the period limited by the contract, and that the right not having been exercised within that time, can no longer avail the vendor, and that the title has become irrevocably vested in Woodman. It appears to us that the *309counter-letter shows, even as between the parties themselves, that the pretended ‘sale was a simulation; and we are now asked to give it effect against third persons and creditors, to establish the reality of the sale, although the immediate surrender of' the note, in part performance of the condition on the part of Tanner, shows a' continuance of the same fiction. The real nature and character of .the contract, appears to us to have been, to secure to Woodman the debt due to him by Tanner. If he had taken a mortgage on the lots for the security of his debt, the transaction might have been perfectly legal, and binding' on the plaintiff as a creditor, unless the knowledge of Tanner’s insolvency was brought home to Woodman. To this extent the judgment of the District Court gives effect to the contract, by decreeing that the representatives of Woodman shall retain out 0f . , , _ _ . ,. . _ . the proceeds the amount due him, according to article 1978, of the Louisiana Code. We do not think it necessary to examine the bills of exception in the record, because, inde- - a . ’ pendently of the evidence excepted to, it appears to us there is sufficient in the record to sustain the judgment of the District Court.

cr^UtoT'TakeTa mortgage on the debtor,ly on tie °n '"riii^e Ending as against the other creditors, unless (he'Xbtoríinf s.olren.°y at the time, is brought home to the j”°rtsa£e °iecU“

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