Newman v. Mahoney , 44 La. Ann. 423 ( 1892 )

The opinion of the court was delivered by

Fenner, J.

This is a suit by creditors to revoke a conveyance made by their insolvent debtor, L. Mahoney, to his son, T. J. Ma-honey, on the ground that it was made in fraud of creditors.

The conveyance is, in form and substance, a sale. It is made for a fixed price of $1200, of which, as recited in the act, $300 was in cash and $900 in three negotiable notes at one, two and three years, secured by mortgage on the property. The evidence shows that the three hundred dollars was not paid in cash at the date of sale, but was discharged by a debt due the vendee for wages. But the same evidence, which is that of plaintiff’s own witnesses, shows that the agreement to sell had been made nearly a year previously, and that the wages due the vendee were left in the vendor’s hands for the express purpose of discharging the cash payment which had been agreed on. We think this circumstance robs the conveyance of any feature of a fraudulent dation en paiement, and takes it out of the operation of Art. 2658, Rev. Civil Code, which forbids the giving in payment, by an insolvent, “ to one creditor, to the prejudice of the others, any other thing than the sum of money due.” This was, in substance, a cash payment made in advance and acknowledged in the act. We do not, however, intimate that, even in absence of this circumstance, the contract would not be a sale, under the maxim, Nonpretii numeratio, sed eonventio, perfieit emptionem.

Regarded as a sale it is elementary and is conceded that, in order to revoke it, plaintiffs carry the burden of proving three things: (1) fraud in the vendor; (2) knowledge of his insolvency in the vendee; (8) injury to the plaintiffs.

It may be unfortunate for plaintiffs that they had no means of proving the knowledge of the vendee except by putting the parties themselves on the stand.

They have made the parties their own witnesses; these have unequivocally sworn that the son did not know of his father’s insolvency; and there is nothing to contradict them. Plaintiffs have no alternative but to abide the result.

Judgment affirmed.