Martin v. Drumm , 12 La. Ann. 494 ( 1857 )

Vooriiies, J.

This is an action instituted by the syndic of the creditors of Theobald Koenig to avoid and set aside a sale of certain lots and improvements in the town of Covington from the insolvent to the defendant, made within three months of the surrender, on the ground of fraud and simulation.

The only question presented in the case is whether the onus was on the plaintiff to prove the alleged fraud or simulation, or on the defendant that the sale was real and bona fide.

William B. Homer, the only witness in the case, testifies that the vendor and vendee had been living together on the property conveyed in 1854, that is, Mr. Drumm constantly and Mr. Koenig often during the course of the year, sometimes alone and sometimes with his wife. No change in the possession, it appeared to him, had taken place since the transfer in 1854. Moreover, it appears from the recital in the deed of sale, executed on the 13th of January, 1854, and an extract from the proceedings in the case of Theobald Koenig v. His Creditors, that the insolvent was a resident of the city of New Orleans.

The deed of sale shows that the price stipulated was the sum of $500, payable, in the defendant’s note to the order of the insolvent, two years after date, with eight per cent, per annum interest thereon from said date until paid. The note thus given does not appear to have been included among the property and effects surrendered by the insolvent to his creditors. Neither is it alleged or shown that the price thus stipulated was inadequate to the value of the property conveyed.

On the trial below, on the 5th of June, 1855, the note thus given was, according to its term of payment, evidently still outstanding and negotiable. The fact of its non-payment could not, therefore, have the least effect upon the defendant’s right. If it was the property of the insolvent at the time of his surrender, and was fraudulently concealed from his creditors, it was for the latter to resort to the remedy given to them under the statute, or the syndic to take legal steps for its recovery. Revised Statutes, p: 255, § 22 et seq. Duplessis v. Boutté, 11 L. R. 345.

It appears to us clear, from the evidence, that the defendant was not bound to produce proof of his good faith and the reality of the sale, as the property did not remain in the possession of his vendor, hence the Articles 2456 and 1915 of the Civil Code, relied upon by the appellants, must be considered inapplicable. Neither can the presumption of fraud, established under Articles 3323 and 1979 of the Civil Code, be considered applicable, inasmuch as it is neither alleged nor shown that the defendant was a creditor of the insolvent. The presumption established by the 4-ct of 1817, reenacted in 1855, (Revised Statutes, p. 257, § 28,) applies evidently only to cases in which proceedings are instituted against the insolvent, to deprive him of the benefit of the insolvent laws, on the ground of his having given an unjust preference to one or more of his creditors over the others. As we have seen, the defendant does not fall within this category.

Judgment affirmed.