On Rehearing.
PROVOSTY, J.On further consideration,, and after reargument, the court is satisfied that it erred in holding that parol evidence is admissible in this case. The rule is that parol evidence is inadmissible to affect title-to real estate (Civ. Code, arts. 2440, 2275), and the effect of admitting it in this case would be to transfer the title to the square of ground in question from Miss Peters to-Miss Ackermann.
The rule is not without its exceptions, and among them are the familiar examples where a creditor seeks by the revocatory action or the action en declaration de simulation to-bring back into the estate of the debtor-property which the debtor has fraudulently transferred; but this court has steadily refused to recognize as an exception to the rule the case where the purpose is to bring into the estate of the debtor real estate that has never formed any part of it.
Thus, in the case of Nouvet v. Vitry, 15 La. Ann. 653, where the debtor had lived for many years in concubinage with a colored woman, and had purchased real estate in her name — in the same manner that Miss*1078Ackermann is alleged to have done in the name of Miss Peters — and, after ineffectual efforts to rescue the property, had surrendered it to his creditors, in fraud of whom he had used his concubine’s name for his purchases, and the syndic, acting for the creditors, brought suit to have the property declared to belong to the debtor, just as in this case it is sought to have the property in question declared to belong to Miss Ackermann, the debtor — the court refused to permit the use of parol evidence. The syllabus of the case, which correctly sets forth its doctrine, reads as follows:
“In an action by the creditors to annul a' simulated sale of their debtor’s property, such creditors enjoy privileges which would be denied to the debtor.
“But in a suit to make out title for their debtor the rights and privileges of the creditors are precisely the same as those of the debtor himself.”
Arguendo the court said:
“This action has none of the attributes of one in revocation of fraudulent contracts, nor is it, properly speaking, one to set aside and annul a simulated deed. The plaintiff does not pretend that the sales made to Louise A. Vitry are simulated and fraudulent, for that would defeat his own pretentions. The charge is that, although the purchases were made in her name, yet Courcelle was in reality the purchaser. The object of the syndic is, not to defeat the purchases, but to make them inure to the benefit of the insolvent estate, and to succeed in this object it is necessary to make out title in the name of Courcelle, who has himself already failed in the attempt. * * * In an action to annul a simulated sale the creditor would enjoy privileges denied to the debtor — such, for instance, as that of introducing parol evidence; and the former might maintain his action, whilst the policy of the law would deny an action to the latter. Civ. Code, art. 2236.
“But in a suit to make out title for the debtor it is evident that the creditor could not claim the benefit of such a discrimination. Civ. Code, art. 2255.”
« Again, in the case of Barbin v. Gaspard, 15 La. Ann. 539, where forced heirs sought to show that property bought by a third person had in reality been bought by their ancestor, and the title taken in the name of the third person for the purpose of concealment from creditors, the court, although recognizing that for the purpose of introducing, parol evidence the forced heirs occupy in. such suits as favorable a position as creditors, refused to permit the use of parol evidence, observing as follows:
“In the third place, it is to be observed that this case is not one of those in which the forced heirs of the vendor may show by parol testimony the simulation of a sale by their ancestor, for the reason that the vendor of O. W. Snoddy is not the ancestor of' the forced heirs represented by the plaintiff,, and for the further reason that it does not appear by any evidence recognized by law that their ancestor ever had any title to the slave in dispute.
“There is a great and material difference between the right to introduce parol testimony to show fraud or simulation in the sale of immovable property or slaves by the ancestor, to the prejudice of the legitime of the forced heir, and the right to introduce parol testimony to show title in the ancestor to such property for the purpose of increasing the amounts of assets belonging to his-estate. The former right may, in a certain class of cases, be excused; but the latter right never can be, without the consent of the defendant or party claiming adversely to the heirs. It is the latter right which the-plaintiff seeks to exercise in this case, contrary to the letter and spirit of the law, as well as the will of the defendant.”
Again, in the comparatively recent ease of Dohan’s Heirs v. Dohan, 42 La. Ann. 451, 7 South. 569, forced heirs sought to show under proper allegations that the purchase of certain real estate at public sale and several’ transactions thereafter had in connection with the property were in furtherance and execution of a fraudulent scheme and conspiracy to enable their mother to make a disguised donation of one-half of the property to her second husband, and that the-purchaser at the public sale had been a person interposed, and the mother the real purchaser. The court said:
“The first step in their chain of proof must necessarily be to establish their ancestor’s-ownership of the property sought to be revendicated. They predicate her title ex*1080■clusively upon the probate sale, for the suc■cession of Rembert Harris in 1849, they say, was a person interposed to take the apparent title for the benefit of, and under obligation to convey the same to, their mother. They produce no counter letter from Harris, nor .any other written evidence to prove that the apparent title of Harris was the real title of their mother. They seek to establish her title to this immovable property, and to destroy the title of Harris; now held by the defendant, M. J. Dohan, by evidence exclusively parol.
“It is not pretended that the sale to Harris was a fraud on the rights of the plaintiffs, as forced heirs of their mother; on the contrary, it is the sole basis of any rights they could have.”
See, also, case of Burg v. Rivera, 105 La. 145, 29 South. 482.
These eases, we think, are conclusive, and ■require the rejection of the parol evidence; and, this done, the case of plaintiff remains without proof, and must be dismissed.
It is therefore ordered, adjudged, and de■creed that the judgment appealed from be •set aside, and that plaintiff’s suit be dismissed, with costs in both courts.