Ruys v. Babin ( 1859 )

Vookiiies, J.

The plaintiff, Carmelite Ruys, sets up title to certain property described in her petition, -which has been levied upon as her husband’s, L. A. Latil, to satisfy two judgments obtained against him for the use of A. lkiplanlier. The defendant avers that she is not the bona fide owner; that if she lias any apparent title thereto, it was obtained without any consideration, and ms simulated, and intended fraudulently to cover her husband’s property from the claims of his creditors; and that Thomas F. Hernandez, from whom she pretends to derive title, was a party to said fraud and simulation, and never was tie bona fide: owner of said property. She further avers, that the title was always ia L. A. Latil the husband, and that he has always remained in possession.

It appears that on the fifth of September, 1846, Joseph Menard purchased at Sheriff’s sale, all the right, title and interest of Latil to the lot and improvements in controversy; and on the 14th of the same month and year, toansferrea the same by authentic act to Hernandez. On the 5th of September, 3853, Hernán-dez conveyed said lot and improvements to the plaintiff, for the snna of $600; in payment of which she transferred to him her rights in the succession of her-deeeased father. In the meantime, the plaintiff and her husband remained im possession of the premises without paying rent, and Hernandez paid the taxes. It further appears, that when the latter collected the amount commgt to the plaintiff from the succession of her deceased father, he gave it back to her; and fe testifies that he considered this as a donation.

There can be no doubt as to the complete divestiture of the husband's title by the Sheriff’s sale in 1846 ; so that the effect of the transfer from Hernandez to the wife must regulate the respective rights of the parties.

The evidence in the record does not show any fraud on the part of Hernandez. He purchased from Menard for a valuable consideration; nor is it pretended that his purchase was simulated and fraudulent. The naked fact that Latil was in possession of the property sold under execution, does not of itself vitiate the conveyances from the Sheriff to Menard, and from the latter to Hernandez, as the evidence shows the reality of these transactions. Now, in regard to the question as to the consideration of the sale from Hernandez to the plaintiff it appears to us clear, that the sale being made in the name of the wife, and the consideration stipulated being the transfer of her paraphernal rights, it follows, that the property so purchased is paraphernal. It is the consideration as stipulated in the formation of the contract, that gives character to the deed; and if Hernán-dcz chose afterwards to give up the stipulated consideration, and the plaintiff acceded to it, her original rights could not certainly be impaired thereby. Even if there was no consideration for the sale from Hernandez to the plaintiff, still it is not conceived in what respect the defendant could possibly complain ; for the act, if not one of sale, must be treated as a donation, enuring to the benefit of the party in whose favor the same was made.

Judgment affirmed.