Hiriart v. Roses , 13 La. 126 ( 1839 )

Emsíís, J.

delivered the opinion of the court.

The plaintiff alleges, that on the 2nd of October, 1835, he obtained judgment against Auguste Roger, for the sum of one thousand three hundred and fifty dollars, with interest and costs; that the said judgment was rendered on a debt which existed prior to the date of the several conveyances of which he afterwards complains.

That on the 7th day of January, 1828, the said Auguste Roger conveyed a female negro slave named Eliza, then aged about eighteen years, to Mathurin Bourg, and on the 2nd day of October, in the same year, he conveyed to the said Bourg a certain lot of ground, in the town of Thibo-deauxville, with the improvements thereon; these conveyances were both under private signature, but were afterwards duly recorded.

That afterwards, by public act, of the 10th of November, 1831, the said Bourg conveyed the said lot and the slave, with her child, to Valery Roger, the defendant, the son of Auguste Roger, and on the 11th of November, 1831, the said Auguste Roger sold another lot in the town of Thibo-deauxville, described in said act, to the said Valery Roger.

That the slave Eliza died, leaving a child named Zoé : that part of said principal lot, having fifty feet front on the Bayou, is in possession of Madame Exnicious, the daughter of the said Auguste Roger, and her minor child, Marie C. Exnicious ; that the remainder of the lot, and the slave child Zoé, is in the possession of the defendant, Valery Roger, and that the lot sold by Auguste Roger, to Valely Roger, is in the possession of George C. Bedford. These sales are all alleged to be fraudulent, and made with the intention to defraud the creditors of Auguste Roger ; the usual allegations necessary to support the action are made; judgment is asked accordingly, and relief,is prayed for against all the parties who are in the possession of the property. After issue joined, Bedford disclaimed, and reconveyed the lot he purchased to one of the defendants, J. F. Brunot. , The debt on which the plaintiff obtained judgment in October, 1835, we shall assume originated on the 27th of May, 1831, the date of the notes on which the suit is brought.

We consider the sales made to Mathurin Bourg as absolutely null; the evidence is conclusive on this point ; and that during the time the property remained in his name, it was to all intents and purposes the property of the father of the defendant. On the subject of simulation, we consider the law as settled. See Merlin, Reportoire de Jurisprudence, verbo Simulation, section 3. The opinions of jurisconsults are there given. D’Argentine, speaking of agreements of this description, says, “colorem habent, substantiam vero nullam, nulla quippe conventio initur, nullus contractus agitur, sed fingiturJ Baldus describes a convention like this under consideration as “ corpus sine anima et dicitur coloratus, depictus, extrinsecus appa-rens, intrinsecus nihil habens.” It is due to Mr. Bourg, who was examined in this case, to state, that he disclosed fully the nature of the pretended transfers, without any reserve or disposition to conceal it.‘ 1

a simulated absolutely null. „ evidence esta-tie* part'of the purchaser, the sale will be de-dared fraudu-it regardseredi-a credltor^f die original ven-

€ ^ We consider that it is proved that the sale of the lot of ground and slave, from Mathurin Bourg to the defendant V. Roger, was fraudulent on the part of the purchaser, and void as it regards creditors,

The plaintiff has established the facts necessary to enable him to recover in this action under the provisions of the civil code. We do not think the evidence establishes fraud on the part of Madame Exnicios or Brunot, two of the defendants, who hold, under purchases from the defendant, part of the property sold by Auguste Roger to his son Valery Roger, We disallow the claim for improvements set up by the defendant, Valery Roger. The judgment of the court below must be reversed.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed ; and it is further ordered, that the plaintiff have judgment against the defendant, Valery Roger > that the sales of the property, to wit, the lot of ground in the town of Thibodeauxville, described in the act of sale from Auguste Roger to Mathurin .Bourg, and mentioned in the plaintiff’s petition, and the slave Zoé, (except as hereinafter mentioned,) be avoided and annulled as to its effect on the plaintiff; and ' that said lot and slave, or á sufficient part thereof to satisfy tlie plaintiff’s debt, with interest and costs, be sold under execution, and the proceeds applied to the extinguishment of the same; and that the appellee pay the costs of the appeal.

And it is further ordered, that judgment be entered in favor of Madame Exnicios, in her own right and as tutrix of her minor child ; and of Jacques Framjois Brunot, with costs in both courts.