The judgment of the court was pronounced by
Rost, J.This case was-before us at the last term, and the facts of it are fully stated in the opinion then delivered. 5th Ann. 578. It was remanded on a bill of exceptions, with instructions to the district judge to admit in evidence the deposition of Joseph B'eraud, attached thereto, which the plaintiff had offered to prove the fraud alleged, the want of consideration of the contract of sale which she seeks to avoid, and the interposition of the defendant therein for the benefit of his brother.
On the second trial, this deposition was again offered, and the defendant’s counsel objected to its introduction, on the ground that the witness does not disclose *676any facts of his own knowledge, but only what has been told him by the plaintiff and her husband, out of the presence of the defendant; that the plaintiff ought not to be permit£ecH;o make evidence for herself; and that her husband’s statements to the witnesFcannot be received for or against her.
This evidence forms part of the “res gesta," and is well calculated to raise that class of presumptions which the law deems, in certain cases; sufficient to establish fraud; but independently of these considerations, the deposition of this witness, when offered on the first trial, was objected to by the defendant’s counsel on the ground, only, that it was inadmissible to contradict, vary, or add to the act of sale a counter-letter, being the only means by which the act could be impeached. These objections were overruled by us, and the district judge was instructed to admit that deposition in evidence. This decree is binding upon the defendant, who must be considered as having waived all objections to the introduction of the evidence, which he did not then make. That evidence, not being of the class which the law makes it the duty of judges to disregard, we think it was properly admitted.
The district judge deemed this and the other evidence of the plaintiff, sufficient to establish the fraud and interposition alleged, and we see no reason to differ from him; the right of the plaintiff to make that proof against the party to whom she sold, was considered and recognized when the case was before us last year. We are satisfied of the correctness of the opinion then formed.
Art. 1747 of the C. C., is as follows: ‘ ‘Husbands and wives cannot give to each other, indirectly, beyond what is permitted by the foregoing dispositions. All donations disguised, or made to persons interposed, shall be null and void.”
As well observed by the plaintiff’s counsel, that article contains two separate dispositions: one by which the spouses are incapacitated from giving to each other more than the law permits, in which case the excessive donation is reducible, and the other declaring null and void all donations disguised, or made to persons interposed. This distinction of reducible donations between husband and wife, and donations which are null and void on the ground of interposition or disguised, came to us from the Roman law. See Digest, book 24, title 1, law 5, paragraph 5. Pothier, Donations entre mari et femme, No. 78. It was recognized by the late Supreme Court, in the case of Casanova’s heirs v. Acosta et als. 1 L. R. 185. It is also recognized by the French commentators under a similar disposition of the Code of France. 5 Toullier, No. 76, 83, 901, 902.
The second paragraph of art. 1747, creates an absolute incapacity, between husband and wife, to make to each other disguised donations, or donations to a person interposed; and if they do so, the donation is null and void. This nullity being considered by jurisconsults as absolute, may in all cases be invoked by the contracting parties or their heirs. 7 Toullier, No, 558.
This class of cases are, from necessity, exceptions to the rule invoked by the appellant, that simulation cannot be proved between the parties to it, otherwise than by a counter-letter; when a fraud has been accomplished by simulation, the party injured by it may prove it by all kinds of legal evidence.
It is therefore ordered, that the judgment be affirmed, with costs.