The judgment of the court was pronounced by
King, J.The motion to dismiss this appeal cannot prevail. The appeal was taken in open court. No bond of the appellants in favor ofthe sheriff was necessary, in order to enable the former to have their case heard as against the plaintiff in the cause. The judgment is not sought to be amended to the prejudice of the sheriff.
The statement in the motion for the appeal, that it was made by the counsej of the plaintiff', instead of the counsel of the defendants, is evidently a clerical error in transcribing the record.
Lockhart and Ami held a twelve months’ bond, executed by Eckley, Harrell and Nettles, under which they caused a fieri facias to issue from the District Court of the First Judicial District, directed to the sheriff of East Feliciana. The sheriff proceeded to execute the wrifon a tract of land and a number of slaves, in the possession of Harrell. Hobgood, the plaintiff in the present action, enjoinep *324the proceeding, alleging that he was the owner of the property seized, by purchase from Harrell and wife. A motion was made in the court below to dissolve the injunction, on the ground that the judgment of Lockhart and Arrot was rendered in the First District Court, and that the District Court of East Feliciana was without authority to arrest its execution. The motion was overruled, and, we think, correctly, under the authority of the case of Lawes et al. v. Chinn. 4 Mart. N. S. 388.
The defendant, Lockhart, alleges in his answer, that the sale from Harrell and wife to Hobgood, is simulated and void; that it was made by the parties collusively and fraudulently, for the express purpose of defeating the defendant’s claim ; and he offered witnesses, on the trial below, to prove these allegations, and, as one of the badges of fraud, that the sale was accompanied by no change of possession. The testimony was rejected, on the ground that the validity of the gale could not be collaterally questioned, and that the party claiming rights upon the property which it conveys, must, before exercising them, cause the act to be annulled in a direct revocatory action. The judge, in our opinion, erred.
A simulated sale wants the essential requisites of a contract. It vests no title whatever in the ostensible purchaser, and may be disregarded by the judgment creditor in the execution of his fieri facias. It is not subj ect to the rules governing real contracts which operate injuriously to creditors, aud which can only be avoided by a direct action. When a plaintiffin execution, finds himself opposed by such a pretended and unreal transfer, he must be permitted to prove its falsity. Cammack v. Watson, 1 Ann. Rep. 132. Wright v. Chambliss, 1 Ann. Rep. 262. The court below, in our opinion, erred in perpetuating the injunction.
It is therefore ordered, that the judgment of the District Court be reversed. It is further decreed, that this cause be remanded for a new trial, with instructions to the district judge to receive testimony to show that the sale from Harrell and wife to Hobgood was simulated, and that the sale was not accompanied by a change of possession; the appellee paying the costs of the appeal.