delivered the opinion of the court.
The wife obtained a decree of separation of property from her husband, and a judgement against him for five thousand eight hundred and nineteen dollars, in the year 1815, which was satisfied, except one thousand and eighty-six dollars. The husband obtained the benefit of our insolvent laws, in the year 1824, and died on the seventh of December, 1826; having previously inherited from his father a certain amount *4220f property, who died on the sixth of April, of the same year. Previous to the death of Joseph Be Blanc, Auguste Borine (who is a defendant in this action) had obtained a judgement against him, and subsequently levied an execution on that part of his father’s succession which was inherited by the son. The wife obtained an injunction to stay proceedings under this execution; claiming a preference on the property seized, to have the balance of her judgement satisfied. Pending these proceedings, Be Blanc, the husband, died, and the cause was transferred to the Court of Probates, and judgement then rendered, allowing the preference claimed by the wife, from which Borine appealed.
A judgement obtainedbythe wife against on* his^confession, although conclusive between them-to^be impeach-ground*1 Fraud and coljmr°onsagainst operate*4 may So, in a suit (Founded on ^a previous judgment against her husband), perty0*aUeged to be subject to her legal mortgage, and third*person or husband onan allegation ^oi lusion, the bur-will*be^thrown to 4*show*nthe truthandgenuclaim on which she obtained agaiMt^her husband,*422The only question presented for decision, relates to the i- j / a i • • c i, preierence claimed by the plaintin, in consequence oi her judgement against her husband. This judgement is based entirely on the confession of the latter; and the preference ' * claimed is opposed on the ground of fraud and collusion between the husband and wife, by which the latter obtained judgement; and although conclusive between the parties,it is liable to impeachment by third persons, against whose rights it may operate. In truth, this question seems to be settled by several decisions of the Supreme Court. In the cases of Buison vs. Thompson, 7 Martin, N. S. 460, and that of Beard vs. Pijeau, 8 Martin, N. S. 459; and also that of Serapurn vs. La Croix, 1 L. Rep. 373. The doctrines laid down . , . . , , ,, . . m these cases is in no manner contrary to the principles assumed in the decision of the case of Turnbull vs. Davis etal. i Martin JY. ¿7.,- for in that suit no allegation of fraud and ° collusion is made in the answer.
The right of third persons who may be defrauded by judge-men^s rendered in cases to which they were not and could not become parties, to allege fraud against such judgements, may be safely admitted as a general rule in jurisprudence; and all transactions between husband and wife, by which Preferences are created in favor of one of the parties, must be viewed with suspicion when they come in competition with the claims of other creditors. We are of opinion that *423the allegations of fraud and collusion, contained in the answer, placed the burthen of proof on the plaintiff, to show the truth and genuinenes of the foundation on which she obtained the judgement against her husband.
The judgement of the Probate Court must therefore be reversed. But the plaintiff having relied solely on her judgement, under a belief that it should be held conclusive against all persons, may have her just claims sacrificed. The cause ought therefore to be remanded, for a trial de novo, in order that she may adduce evidence (if in her power) to support the judgement against her husband; this the justice of the case requires.
It is, therefore, ordered, adjudged, and decreed, that the judgement of the court below be avoided, reversed, and annulled: and it is further ordered, that the cause be sent back to said court for a new trial; the appellee to pay the costs of appeal.