Frost v. Bebout , 14 La. 104 ( 1839 )

Martin, J.,

delivered the opinion of the court.

The plaintiffs claim the amount of three several promissory notes of the defendant, and obtained a writ of attachment, which was levied on property of the defendant, and three - lots in suburb Lafayette.

By a supplemental petition, on an allegation that the defendant and his wife had made a fraudulent sale of the lots to Burress, Mrs. Bebout and Burress,were made parties; and the petition concludes with a prayer that the sale be set aside.

The attorney appointed to represent the defendant and his wife, pleaded the general issue.

Burress denied all the allegations in" both petitions, as far as they related to him, and claimed damages in reconvention for the slander of his title. The District Court gave judgment in favor of the plaintiffs, for the amount of the notes, and ordered that the property ¿ttached be sold, and the proceeds applied to the discharge of the judgment; and if it be not sufficient that the bill of sale from Bebout and - wife to Burress be considered as a mortgage on the lots conveyed to him, and that three months be allowed him to establish the amount of his claim; and that-after the discharge of it by the sale of the lots aforesaid, the balance be applied to the plaintiffs’ debt. From this judgment Burress appealed, and made the plaintiffs and the defendant and his wife appellees.

TheJ'oj'm of a contract of sale, may be given to a different contract, as a mortgage, when the property is absolutely conveyed. Between the par* ties to the conveyance, its real nature must be established by a counter letter; but those who are not parties to the contract, and have an interest in establishing its real nature, may do so by testimony. The circumstance of a witness being the clerk to the plaintiffs, and brother of one of them, does not destroy or diminish his credibility. When parties are in court, whose jurisdiction has attached, they may be required to litigate all thejr claims there, relating to the property in controversy, although they reside in another stale.

The plaintiffs’ claim has been fully established. The appellant’s counsel has urged, that the District Court erred, in concluding, without any evidence of collusion or fraud, that the sale to Burress was a mortgage for an indefinite sum, on the testimony of Frost, the brother of one, and clerk to both of the plaintiffs; and in compelling Burress, and Bebout and wife, to liquidate the claim of the former against the latter in one of the courts of this state, whilst they reside in that of Arkansas.

It does not appear to us that the court erred. The form of a contract of sale may be given to a different one; as that of mortgage, or when property is absolutely conveyed to a person, who is charged to sell it, or to cover it for the owner for a lawful purpose ; as, when a vessel is transferred to a neutral person to prevent her being taken at sea during a war. Between the parties to the conveyance, in such cases, the real nature of the conveyance must be established by a counter letter; but those who are not parties to the contract, and who have an interest in establishing its real nature, may do so by testimony. Thus, a creditor may show the real character of the conveyance by which the property of his debtor is protected from his pursuit. The protection thus afforded to it, being in some degree a presumption of fraud, since it has the effect to defeat the creditor’s right and a feigned contract is resorted to, to conceal a real one.

The district judge has given credit to the witness, notwithstanding the relation in which he stands to both plaintiffs. We are not able to say that he did not do so correctly.

Burress being before the District Court, and claiming property on which there was an adverse claim pending in that court, might well be required to exhibit evidence of his right; and the, circumstance of time having been given him for that purpose, cannot give him any right to complain ; and Bebout having been brought into court by the attach-merit of his property, was bound to contest in that court, claim raised there against this same property.

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