Morton v. Crosby

Bullard, J.,

delivered the opinion of the court.

This action was instituted to recover possession of certain slaves, alleged to be the property of the plaintiff, which had been levied upon by one of the defendants, then sheriff, under an execution issued upon a judgment against the plaintiff’s vendors. The plaintiff exhibited an authentic sale, and duly registered in the office of the Register of Conveyances. The defence set up by the seizing creditor of the plaintiff’s vendor is, that the sale was simulated, collusive and fraudulent. That in fact no possession was ever given, and that the whole was intended to defraud the creditors of the vendor.

At the trial, the defendants offered evidence to prove that the sale to the plaintiff was fraudulent and collusive; that the plaintiff had never been in possession of the slaves. This was objected to, on the ground that the sale annexed to the plaintifffs petition could only be set aside by a revocatory action, and it was admitted that the defendant knew of the conveyance before the seizure. The court refused to admit the evidence, except to repel the claim for damages; but which, in fact, the plaintiff had waived, and the defendant took a bill of exceptions.

The general rule recognized by this court is not contested, to wit: that when a purchaser is in possession under a conveyance, the question of fraud cannot be inquired into collaterally, commencing with a seizure ; but the defendants’ counsel endeavors to distinguish this case, and to bring it within the exception settled by the case of Weeks vs Flower, 9 Louisiana Reports, 375. In that case, one if not more of the acts of sale, was under private signature. The sale was of lands, slaves and household furniture, and might be said to be omnium bonorum, and the vendor continued to reside on the place as usual. In the case now before the court, the sale is of slaves by authentic act, and possession given by the deed itself, and knowledge of the existence of the contract brought home to the seizing creditor. That case turned principally tipon article 2417, of the Louisiana Code, which declares that a sale under private signature shall have effect against creditors, and third persons generally, only from the day on which such sale was registered in the office of a notary, and actual delivery. In the present case, the deed was registered in the office of the Register of Conveyances. We conclude, therefore, that the court did not err in refusing the evidence.

A sale of slavesbyautlien-lie act, duly registered, where possession is giveninthedeed, and tlie. knowledge of the contract brought home to creditors, cannot be attacked as fraudulent, and inquired into collaterally by a seizing creditor; it can only be set aside by a revocatory action.

The judgment of the District Court is, therefore, affirmed with costs.