Gleises v. McHatton , 14 La. Ann. 560 ( 1859 )

Land, J.,

dissenting. The defendants, judgment creditors of Felix Ducayet, having caused certain slaves to be seized as his property, under executions issued on their judgments, the plaintiff en joined the sales on the ground that he was the legal owner and in possession at the time of the seizure.

The answers of defendants deny the ownership of plaintiff, and aver that his title is a simulation, accepted by him for the purpose of defeating the just pursuits of the creditors of Ducayet, and that his possession was for the same purpose, and commenced only on the day preceding the seizure under the executions.

The questions presented by the pleadings, and the one decided by the court below, is whether the title, under which plaintiff claims the slaves, is a simulation.

The facts on which the District Judge rendered judgment in favor of defendants, are thus stated by him :

“ Plaintiff claims certain slaves seized by the Sheriff of tlie parish under executions issuing in favor of defendants against F. Ducayet, which were about being sold to satisfy said executions when plaintiff enjoined the sale. The plaintiff claims under an act of sale from Ducayet and wife, of the date of 17th October, 1857, and the consideration of the sale is stated in said act to bo $18,500. Defendants aver this act of sale is simulated. The evidence shows that Ducayet being largely in debt to Bonneval, Schreiber <6 Co., mortgaged to them certain property situated on the Bayou St John, and seven slaves, (part of whom are the subject-matter of this suit,) and executed a deed of trust on certain property in Jackson County, Miss., to secure the said indebtedness. By an agreement between plaintiff and Bonneval, plaintiff assumed Bonneval’s position towards Duca-yet. Bonneval transferring to plaintiff all his securities, and plaintiff executing his obligations in favor of Bonneval for the amount of Ducayet's debts to Bonne-val, so that Ducayet became the debtor of plaintiff to this amount. Plaintiff had also endorsed notes for Ducayet to the amount of $8000, and in order to secure plaintiff on account of those two indebtedness, Ducayet made the sale of the ne-groes seized and the Jackson County property. The witness, Simms, speaks of this sale as a security and not as a veritable sale.”

Iu addition to these facts, it may be stated, that the property conveyed by Ducayet to the plaintiff consisted of two tracts or parcels of land situated in Jackson County, State of Mississippi, and seven slaves, also in said county and State, the place of domicil of Ducayet. That the slaves were left by plaintiff in the possession of Ducayet, and that four of them were attached by the creditors of the latter in the State of Mississippi, and that the plaintiff upon a claim of ownership, under his title from Ducayet, was permitted under the laws of that State to bond them. That he removed the slaves from the State of Mississippi to this city, where they were seized by the Sheriff, under the execution of Romagosa, as the property of Ducayet. And that the two slaves seized under the execution of McHatton, had been removed from the State, of Mississippi only a few days before by Ducayet, but that they were, as the other four slaves, in the possession of the plaintiff at the time of the seizure..

The consideration of the contract between plaintiff and Ducayet, which they put into the form of a contract of sale, was, first, an indebtedness of Ducayet to Gleises, and secondly, the liability of Gleises as the accommodation endorser of Ducayet.

The District Judge came to the conclusion upon the evidence that there was a real contract between the parties, — but that as the real contract was one of mortgage or suretyship, that the apparent contract of sale was therefore a simulation.

To form a real contract of sale, it is not essential that the consideration should be paid in money, — the indebtment of the vendor to the vendee, will constitute, in the sale of a slave, a legal and sufficient consideration. Weld v. Peters, 1 An. p. 432. In that case, the consideration of the sale was very similar to the consideration shown by the evidence in this case. Iu the case cited, the vendee had possession of the slave from the date of the sale, and the court held that the conveyance to him could not be treated by a judgment creditor of the vendor as null, and that a direct action was necessary to avoid the contract.

In the case before the court, the possession of the jfiaintiff, under his act of sale, commenced only a day or two prior to the seizures of defendants, and then in consequence of the pursuit of Ducayet’s creditors in the State of Mississippi.

The plaintiff, however, brings himself within the well settled rule which requires creditors to institute the revocatory action to set aside contracts having a real existence, but which have been made in fraud of their rights, — he has a title absolute on its face, translative of property, was in possession at the time of the seizure, and has shown that his title was based upon considerations which passed between Ducayet and himself.

Whilst the evidence shows that the conveyance to the plaintiff was in fraud of Ducayet’s creditors, it also shows a real contract between the parties in the form of a sale, and possession by the plaintiff. Under these circumstances the law requires the creditors to resort to the revocatory action. Kirkland v. New Orleans Gas Light Co., 1 An. 299. Weld v. Peters, ib. 432. 2 An. 913

It is, therefore, my opinion, that the judgment should bo reversed.

Merrick, C. J., concurred in this opinion.