The record in this case presents two appeals — one from an interlocutory decree signed April 23, 1923, directing the cancellation from the mortgage records of a notice of lis pendens, and the other from a final judgment signed on April 27, 1923, sustaining a plea of res judicata and dismissing *Page 194 the suit as against the defendant W.J. Hartman.
The suit as originally instituted was for a moneyed demand against the defendant Macheca, founded on a judgment for alimony rendered in the state of New York.
Macheca being a nonresident, an attachment was issued, and the one-eighth undivided interest of Macheca in certain real estate in this city was seized. Proceedings in garnishment were taken out against several persons, including Hartman, but they availed the plaintiff nothing.
Further installments of the alimony having accrued under the New York judgment, a supplemental petition was filed for the increased amount on March 30, 1921. Another attachment was issued accompanied with garnishment against a number of persons, but these proved likewise ineffective.
The defendant Macheca applied to bond the property attached on June 6, 1921, and the order permitting him to bond was issued on June 28, 1921.
The bond was executed on September 12, 1921, and the property released to Macheca. On the day the release bond was executed, Macheca made a transfer of the property to W.J. Hartman for a recited cash consideration of $1,650. The United States Fidelity Guaranty Company signed the bond to release the attachment, but did so under an agreement with Macheca that the $1,650, the alleged price of the sale to Hartman, should be deposited with the said surety company to indemnify it for whatever it had to pay on the bond.
On November 28, 1921, after the property had been released on bond and sold to Hartman, the plaintiff filed and caused to be recorded in the mortgage book a notice of the pendency of her suit and attachment. Before the registry of this notice the plaintiff had on September 29, 1921, by supplemental petition, garnisheed the surety company, *Page 195 and that company on October 11 had answered, stating the conditions on which it had become surety on the release bond, and the circumstances under which it held the $1,650.
Hartman answered the garnishment against him under the first supplemental petition on October 3, 1921, stating that on September 12, 1921, he had purchased the property attached from Macheca for $1,650 cash, and that he was not indebted to Macheca in any amount.
On October 24, the plaintiff filed a rule on Hartman to traverse his answers, alleging that the said answers were false and untrue. This rule to traverse was, after a trial, dismissed by the court on January 17, 1922. No proceeding to traverse the answer filed by the surety company as garnishee was taken by the plaintiff.
On February 15, 1922, Hartman filed a rule to cancel the notice of lis pendens recorded November 28, 1921. In this rule it was alleged that the property had been purchased by Hartman on September 12, 1921, the day on which the said property had been released from the attachment on bond, and that the registry of the lis pendens was wrongful, illegal, and unauthorized by law.
The plaintiff excepted to the said rule on various grounds, among which were that the rule was premature, and that plaintiff in rule could not proceed in the manner and form as attempted. The exceptions were overruled, and the rule was sustained, and the cancellation of the notice of lis pendens ordered. The judgment was signed June 20, 1922.
Thereafter, on June 29, 1922, the plaintiff filed a second supplemental petition in which she claimed an additional amount of alimony. In this petition it was alleged that on September 12, 1921, William J. Hartman illegally connived with Joseph R. Macheca to aid and facilitate the said Macheca in *Page 196 shielding him from the pursuit of the claim of petitioner, and that, accordingly, an arrangement was entered into between the said Macheca and Hartman under which Macheca pretended to convey his one-eighth interest in the property which had been attached and released on bond. It was alleged that at the time of said pretended sale the said Macheca was insolvent to the knowledge of the said Hartman; that the said alleged transfer was simulated and fraudulent, and was entered into by the said parties for the purpose and with the intent of defrauding petitioner as a creditor and shielding the said real estate from the pursuit of petitioner as a creditor of said Macheca; that said pretended sale was a pretense and without consideration, and, in the alternative, a fraud on the rights of petitioner.
The prayer was for citation to Macheca and Hartman, and after due proceedings that the said pretended transfer by Macheca to Hartman be decreed to be fraudulent, simulated, null and void, and set aside, and that the said property be made subject to execution under such money judgment as might be rendered against Macheca.
After filing the supplemental petition, the plaintiff, on June 30, 1922, filed and caused to be recorded a second notice of lis pendens.
To the second supplemental petition Hartman on July 11, 1922, filed consecutively, but in one document, a plea of res adjudicata, estoppel, and of no cause and no right of action.
And thereafter on February 6, 1923, the said Hartman filed a rule to have canceled the second notice of lis pendens. In this rule it was alleged that the plaintiff, in placing the notice of record, was attempting, in an illegal and wrongful manner, to get another hearing on the issues which had been determined adversely to plaintiff in the judgment of January 17, 1922, which dismissed plaintiff's rule to traverse the answers of Hartman, *Page 197 garnishee, and in the judgment of June 20, 1922, which ordered the cancellation of the first notice of lis pendens.
To this rule the plaintiff excepted on the same grounds and for the same reasons as urged in her exception to the rule to cancel the first notice of lis pendens. The exceptions were overruled, and the rule to cancel was made absolute.
The plea of res adjudicata filed July 11, 1922, was likewise sustained, and the suit was dismissed as against Hartman.
As noted in the beginning of this opinion, the two judgments just mentioned are now before us for review.
On the original hearing of the case we reversed both judgments and remanded the case, holding that the plea of res judicata was not well founded, and that the judgment canceling the notice of lis pendens was erroneous for the reasons stated in the opinion.
On reconsideration of the case we see no good reason for changing our ruling on the plea of res judicata. The plea appears to be based on the judgment of June 20, 1922, which ordered the cancellation of the first notice of lis pendens, and on the judgment or interlocutory decree of January 17, 1922, which dismissed the rule filed by plaintiff to traverse the answers to the garnishment by Hartman.
It is quite true that:
"* * * It matters not under what form — whether by petition, exception, rule, or intervention — the question is presented, whenever the same question recurs between the same parties, even under a different form of procedure, the exception of res judicata estops." Greenwood, etc., v. Whitney Bank, 146 La. 567, 83 So. 832.
But the error here is in assuming that the question presented in the revocatory action against Hartman is the same as the question presented in the rule to traverse and in the rule to cancel the first plea of lis pendens. The question of fraud and simulation of the *Page 198 sale from Macheca to Hartman was not raised in either of the said rules, and was not and could not be considered by the court. The sole question tendered in the rule to traverse was the truth or falsity of the answers of Hartman as to whether he was indebted to Macheca or whether he had in his possession any property belonging to Macheca.
The burden was on the plaintiff to prove the falsity of Hartman's answers, and, failing to do so, the plaintiff's rule was dismissed.
Obviously no issue was raised in that proceeding as to whether the garnishee, Hartman, held the property of Macheca under a fraudulent or simulated title. The verity and truthfulness of the sale was not gone into. The plaintiff was not called upon to prove that which was not alleged — and which was admittedly a collateral issue.
And the same is true with respect to the rule to cancel the notice of lis pendens.
The thing demanded must be the same; the demand must be founded upon the same cause of action; the demand must be between the same parties and formed by them against each other in the same quality.
These are vital, essential requisites in order to constitute the "thing adjudged." R.C.C. 2286.
The question presented in the revocatory action is manifestly not the same as that raised in the rule to traverse and the rule to cancel. The demand is not the same, nor are the parties formed in the same quality and capacity. Hartman was a garnishee in the rules to cancel and to traverse; whereas he is party defendant in the revocatory action. Macheca was not a party to either the rule to traverse or the rule to cancel; whereas he is a necessary party to the revocatory action.
The plea of res judicata was fully discussed in the original opinion, and nothing further need be said here. *Page 199
We were in error in our original opinion in not disposing of the pleas of estoppel and of no cause of action. The two pleas were tried and submitted in the lower court along with the plea of res judicata, and the fact that the trial judge rested his decision on the one plea and failed to pass on the others furnishes no sufficient reason for this court to limit its consideration to the particular plea passed on by the lower court, especially in view of the fact that appellee has joined in the appeal, and has asked the court to determine the pleas of estoppel, and of no cause of action in case the other plea is overruled.
As the two exceptions are closely connected and interrelated, and are supported by practically the same argument and reasoning, we shall consider them as one.
The exceptions are based primarily upon the contention that a party cannot attack a sale and at the same time claim the price or the proceeds derived from such sale.
The proposition is elementary, but the pleader has again fallen into the error of assuming, or taking for granted that the plaintiff has claimed or is in the present suit claiming the fund in the hands of the surety company as the price of the sale made by Macheca. The position of the plaintiff is that there was no real sale and hence no purchase price of said land; that the sale was a sham and without a real consideration; that the fund on deposit with the surety company, whether put up by Hartman or Macheca, did not represent the purchase price of a real bona fide sale of the property, but was paid over in consummation of a fraudulent, fictitious, and simulated arrangement between Macheca and Hartman to place the property attached beyond the grasp of any judgment which plaintiff might obtain against Macheca. This has been the persistent and consistent claim of the plaintiff in all the proceedings and pleadings had *Page 200 in the case where the matter has been referred to at all since the said alleged sale was made.
If the facts alleged are true — if it can be shown on the trial of the case that the purported sale from Macheca to Hartman was not intended as a bona fide sale but was intended to place the property beyond the reach of Macheca's creditors, that there was no consideration in fact paid in said transaction, and that the money put up as the price of the sale was in point of fact the money of Macheca, or, if the money of Hartman, that it was to be returned to him if the alleged scheme ultimately proved successful, then surely the court would not hesitate to set the said sale aside. The allegations of the plaintiff's supplemental petition are amply sufficient to admit of proof of all such facts.
We know of no rule of law or good morals that would estop or preclude the plaintiff from demanding the revocation of the sale and subjecting the property to the payment of her debt simply because she had arrested the fund alleged to represent the price of the sale in the hands of the surety on the release bond.
If, as claimed, the money belongs to Macheca and was put up by him, then surely the plaintiff has the right to claim said fund and at the same time to sue to uncover the fraudulent transaction under which the said money was deposited.
If, on the other hand, the money is the money of Hartman and was paid by him in carrying out the alleged fraudulent and collusive scheme, the plaintiff had the right to arrest the said fund in the hands of the garnishee and have it held until the final determination of the issue of fraud and simulation. We repeat that the plaintiff has never claimed the fund as the price or proceeds of the sale of the property, and under the circumstances we are unable to conceive how *Page 201 the doctrine of estoppel, founded on considerations of equity and fair dealing, can be applied in this case.
Should the plaintiff fail in her proof on the trial on the merits, the sale of the property will be maintained, and the plaintiff will be relegated to the bond of release.
Estoppel is not favored in law, and especially is the doctrine not applicable where it is sought to set aside a fraudulent sale or to uncover a simulated transaction.
Neither the garnishment issued against the surety company nor any act of the plaintiff in any proceeding had or document filed in this case has obtained for the plaintiff any undue advantage to the prejudice of the rights of Hartman. Nor has the latter been induced by any act of the plaintiff to change his position or to act differently from the way he would have acted. The plea of estoppel is therefore not tenable.
It is further contended that the bond for the release of the property attached took the place of the property, and that the plaintiff could no longer pursue the property, but was relegated to the bond. This appears to be the reason given by the trial judge for ordering the cancellation of the second notice of lis pendens.
As an abstract legal proposition, it is unquestionably true that the release bond takes the place of the attached property, and that the right of the attached debtor to make a valid and legal sale of the released property is as unlimited and unrestricted as it was before the seizure under the attachment.
It is also true that the creditor cannot, by virtue of his attachment and the privilege resulting therefrom, pursue the property in the hands of a bona fide purchaser.
But to say that the bonding of the property confers on the debtor the right to make a fraudulent and simulated sale of the property, and that the attaching creditor cannot sue to set aside such a sale, is to state a proposition that cannot be sustained under *Page 202 any law. The creditor may, independently of the release bond, proceed against the property in the hands of the purchaser who holds only by virtue of a fraudulent and simulated title. The creditor has this right independently of the attachment, and surely the right is not destroyed by the attachment and the bonding of the property.
The further contention is made that the petition does not allege that the plaintiff has been injured by the sale sought to be annulled. The contention can hardly be taken as serious. The second supplemental petition taken in connection with the original and first supplemental petition and all the rules, motions, and pleas filed in the case show that the property attempted to be brought back is all the property which Macheca owned at the time of the sale; and the record shows that the plaintiff has unsuccessfully exhausted the power and process of the court in an effort to discover money and property belonging to Macheca out of which she could collect her debt. This is all that could be required to meet the contention on this score.
Our conclusion is that both judgments appealed from are erroneous and should be reversed, and all the exceptions should be overruled, and the notice of lis pendens should be reinstated until a final judgment is had on the trial on the merits. We shall accordingly recast the judgment heretofore rendered.
For the reasons assigned, the judgments appealed from are annuled and reversed, the exceptions of res judicata, estoppel, and of no cause of action are overruled, the notice of lis pendens recorded of date June 30, 1922, to be reinstated and that the case be remanded to the court below to be tried according to law and the views herein expressed. The cost of this appeal to be paid by the defendant Hartman.
The right is reserved to the appellee to file a second application for rehearing. *Page 203