Davis v. Stern , 15 La. Ann. 177 ( 1860 )

Vooeiiies, J.

The defendant, a judgment creditor of L. F. Jonte,levied upon property conveyed by the latter to James Davis, by public act dated the 9th day of December, 1856 ; hence the injunction suit brought by this party to prevent the sale of the property, which he claims to belong to him.

The defendant joins issue, on the ground of simulation, alleging that this act of sale is null and void, for want of consideration.

The Civil Code, Art. 2456, provides, that: “ In all cases where the tiling sold remains in the possession of the seller, because he has reserved to himself the usufruct, or retains possession by a precarious title, there is reason to presume that the sale is simulated ; and with respect to third persons, the parties must produce proof that they are acting in good faith, and establish the reality of the sale.”

The evidence shows, in the case at bar, that the vendor, L. F. Jonte, continued to reside on the premises sold, up to the date of seizure; but the plaintiff contends that it was by virtue of a contract of lease executed by him in favor of liis vendor, on the next day after the sale. If the contract of lease be not a precarious title, the above quoted Article could not apply in this instance, unless the evidence disclosed the fact that the lease ilself was a simulated affair. Of this, however, we are satisfied from the acts and conversations of the interested partios, and we agree with the District J udge, that the whole transaction was a simulation, and that it had never been contemplated by the parties, that the title io the property in question should vest in the plaintiff

In order to arrive at this conclusion upon the question of simulation, we had to consider a portion of the evidence objected to, during the trial, by the plaintiff. His bill of exceptions states, that the District Judge improperly admitted parol evidence as to the contents of written documents, and the declaration of L. F. Jonte, in the absence of the plaintiff.

It is a well settled rule of law, that in all cases of fraud and simulation, parol evidence may be introduced by third persons, with the view of contradicting or varying the contents of written instruments. Indeed, this is the only mode in which they can exorcise the remedy allowed to them, to set aside acts and documents injurious to their legal rights. And it is no less certain, that evidence of the conversations or admissions of the parties implicated in a fraud or simulation, may be offered on behalf of creditors, the objection going to the effect or weight of sncli evidence, when the declarations arc not made in the presence of the other party. It is extremely difficult to prove simulation or to ferret out fraud, and, but in rare instances, is it susceptible of positive and direct proof; this is the reason of the relaxation of the rule of law, invoked by the plaintiff in this instance.

The fact that the plaintiff’s title is a simulation, being' conceded, it is necessary to dispose of two objections raised by him to the proceedings resorted to by the defendant in injunction.

The first' objection is, that the latter should have resorted to a direct action of nullity, and not have seized the property at once.

This is untenable. There is a manifest difference between simulated sales and such as are made in fraud of creditors. The remedy, in the latter instances, is the revocatory action ; whilst in the other, the creditor may, at his option, institute the action “ en declaration de simulation,” or proceed via executiva. There is an obvious reason for this distinction ; the revocatory action is predicated upon the illegally injurious effects of a contract, the reality of which is not questioned ; whilst in cases of simulation, there is no contract at all, but stipulations which are null and void, absolutely for want of sincerity. A simulated transaction can have no legal effect; it is a non-entity. Hence the right of the creditors to proceed, via executiva, in all cases of simulated transfers. This doctrine has been expressly recognized in the following cases, to wit: Simpson v. Mills & Cleveland, 12 An. 173; Erwin v. Bank of Kentucky, 5 An. 1; Emswiler v. Burham, 6 An. 717.

In the case of Erwin v. Bank of Kentucky, the court said : “ The distinction between a fraudulent contract and a mere simulation, has always appeared to ns elementary. A contract is not the instrument of writing by which it is witnessed. L. C. 1755. It results exclusively from the consent, the aggregatio mentium of the parties to it; and without such consent, no contract can exist. Hiriart v. Roger, 13 M. 129, and authorities there cited ; Merlin, verbo Simulation.”

“ We have repeatedly held, that the chapter of the Code regulating the revocatory action, is not applicable to cases of simulation, and that in those cases creditors may seize, notwithstanding the apparent transfer.”

In the case of Emswiler v. Burham, the court expressed the same opinion, saying : “ We adhere to the doctrine laid down in the case of Erwin v. Bank of Kentucky.” And in Simpson’s case, reported in 12 An. 173, the same doctrine was recognized upon the authority of the previous cases quoted.

It is a matter of no moment whether the creditor’s claim accrued previously or subsequently to the passing of a simulated deed. A simulated sale is an absolute nullity, and has never had, nor can ever have any legal effect.' It cannot be the basis of prescription ; for it is not translative of property. The vendee’s possession in such a case, is the possession of the debtor ; and the latter’s creditor, whose rights or claims have accrued subsequently, are no more affected by this simulated deed than the debtor himself. It will not be de denied that the latter has the right to cause the simulated deed to be cancelled, upon the production of a counter-letter, or upon probing the vendee’s conscience. C. C. 2236. Now there is this difference in favor of the creditor, that he may show the simulation, not only by counter-letter or by probing the vendee’s conscience, but also by parol evidence and presumptions of law.

If, therefore, the debtor may at any time have a simulated deed declared a nullity, it follows, necessarily, that his creditor may do so, without reference to the date of his claim. This brings the question to a point; if an antecedent creditor lias the right to proceed via execuliva in cases of simulation, because of the unreality of the transfer, then for the same reason, ought the same privilege to be extended to a subsequent creditor.

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