delivered the opinion of the court.
The plaintiff, as curator of the estate of John Gravier, sues to recover a lot of ground in the faubourg St. Mary, which was adjudicated to his intestate, at a probate sale, in 1822, provoked by Jean Laurel, executor of the last will of Pierre Cullion. The defendants, one of whom is one of the heirs of *276P. Cullion, and the other her vendee of a part of the same lot, aver in their answer, that the sale from Laurel to Gravier was simulated and fraudulent; that Gravier never was in possession, and never paid the price, but acted as a person interposed, and that in truth, Laurel was the real purchaser, and that afterwards the "sale was rescinded by the Court of Probates, and Laurel ordered to restore the property to the heirs, which was accordingly done, with the full knowledge of Gravier; Laurel was cited as warrantor.
A person who is cited in warranty cannot be called and sworn as a witness for the plaintilF therein. He stands as a real party in interest, to warrant the title of the defendant. A motion to file a supplemental petition, and take the answer of the warrantor to written interrogatories;comes too late after the trial has commenced. Third persons in possession are not bound to prove by counter letter the simulation of a contract between others, ^ who claim the property, but may make good their allegation by any other legal evidence.The case was tried by a jury, who found a verdict for the defendants, and the plaintiff appealed.
' Our attention is first called to a bill of exceptions, from which it appears that the court refused to permit Jean Laurel, the late executor, to be sworn as a witness on the part of the plaintiff, on the ground that he was a party to the present suit. We think the court did not err. It is true, that when a person is only a nominal party, be may, in some cases be a competent witness; but in this case Laurel stands as a real party in interest, a warrantor of the title of the defendant. 5 Martin, N. S., 7.
It further appears that the plaintiff’s attorney thereupon moved to take the answer of Laurel to written interrogatories, and for that purpose to file a supplemental petition. We concur in the opinion expressed by the court below, that the application came too late after the trial had commenced.
The question of simulation and fraud was submitted to the jury, and their verdict must stand, unless we should be satisfied that it is clearly against law or unsupported by evidence.
The plaintiff who represents the estate of Gravier, does not present himself in this case under more favorable circumstances than Gravier himself would if he were plaintiff in the case. The defendants, on the contrary, must be considered as strangers to the contract between Laurel and Gravier. They are not, therefore, bound to prove by "counter letter the simulation of the contract, but may make good their allegation by any species of legal evidence.
Where simulation in a sale is charged by the possessors of property, and who were not parties to this sale, the jury will be supported in their verdict, finding the simulation, by presumptive and circumstantial evidence.In support of the plaintiff’s title, he exhibits a conveyance from Laurel, as executor, from which it would appear that the lot in dispute, together with other property of the succession of Cullion, was sold at auction in pursuance of a decree of the Court of Probates; that Gravier had become the purchaser of the lot, and paid a part of the price down, and gave his notes for the balance.
On the other hand it is shown that Gravier never went into possession, nor ever exercised any acts of ownership; that his notes were never paid ; that he declared he purchased for Laurel and would not pay; that Laurel made repairs and continued to possess as if no sale had taken place, and that the defendant, Elizabeth Cullion, has been in possession since 1824. It is further shown, that the simulation of the contract was judicially established as between Laurel and the heirs of Cullion, and that he surrendered the property to them in pursuance of that decision.
All these- facts amount certainly to strong presumptive evidence, that the contract was not real. It is true, as contended by tbe plaintiff, that the judgment of the Court of Probates has not the form of the thing adjudged against Gravier, because he was not a party ; but it is clear, he stood by and saw that judgment executed by Laurel, without opposition, and that he took no steps during his life time, either before or after, to obtain possession of the lot in dispute. The fact that the vendor retains possession, is generally a badge of fraud, or furnishes a presumption of simulation. The proof of the declaration made by Gravier, that he bought for Laurel, would not be entitled to much consideration, if it stood alone, and was not in harmony with his whole conduct in relation to the contract. The jury might well think that the acts of Gravier were susceptible of no other interpretation than his own declaration purports, to wit: that he had lent his name to Laurel for the purpose of divesting the heirs of their title, for the ¡exclusive benefit of Laurel, who, as executor, was incapable of making the purchase in his own name.
*278But it is contended by the counsel for the appellant, that the defendant, Elizabeth Cullion, in her opposition to the account filed by the executor, in which she was charged with the rent of the house and lot, for five years, alleged that she had rented the house from Gravier, and not from Laurel, and that she is bound by this judicial avowal. To this, it may be said, in reply, that the whole of the party’s answer and opposition must be taken together. It cannot be separated, and that part selected, which, if standing alone might prejudice her right. The answer and a supplemental answer, form but one. In the supplemental answer she denies the right both of Gravier and of Laurel, by alleging the simulation of the contract; she thus assumed the same ground which she yet maintains, that the heirs had never been divested of title.
It is further urged, that John Gravier, so far from ever covering the property of others by simulated contracts, was constantly harassed 'by his creditors, and in the habit of screening his own property by similar contrivances. It would certainly be difficult to prove so broad a negative, as that he never reciprocated such favors, but the averred fact, that he was in the habit of covering his own property, proves that he had no particular scruples on the subject, and tends to show that he may on particular occasions have lent himself to his friends, if they chose to run the risk. It js not easy to account for the conduct of the parties upon any other hypothesis, than that the sale was not real, and upon a review of the evidence, upon which the jury proceeded, we are unable to say that their finding ought to be disturbed.
It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.