dissenting. I do not concur in the conclusions of the majority of the court in this case. There is no better settled rule of law than that the declarations of third parties cannot prejudice another.
The declarations of R. A. Garson, out of the presence of his brother, cannot prejudice the plaintiff, although in the revocatory action they may be evidence for the purpose of showing the sale was fraudulent on his part. To bind the-plaintiff, his own admissions alone could be offered against him.
The testimony of J. O. Jones, himself also a clerk and apparently not related to the plaintiff, proves the indebtedness of R. A. Garson to the plaintiff. He says: That the plaintiff “ was clerk for R. A. Ga/rson; commenced in the fall of 1849, and continued as his clerk to January, 1852, and about that time Ccwson sold and I (Jones) was also one of his clerks, and left January, 1852. In 1850, my salary was $300, and in 1851, $350, and an interest in the pro*759fits of the post office. Moses Carson’s services during the years 1850 and 1851 were worth $250 per year.” It is true that the plaintiff told him he did not know how much he was to receive. But the want of a contract would not prevent the plaintiff rocovering the value of his services. I know of no law which refuses to a minor his wages. Were there any reason to doubt the testimony of James H. Carson, the brother of the plaintiff, it is fully corroborated by the preceding testimony of Jones. Now, conceding that £. M. Carson was embarrassed, (and that would account for the delay in paying plaintiffs as well as defendants,) or even insolvent, and it does not follow that the sale made in this case was not intended as a real sale. If the intention of the parties was to give the plaintiff a preference over the other creditors, or to let him have the property at an inadequate price, or even if it was intended that he should hold the property for his own use, although in fraud of creditors, in all these cases, the sale is a real one, and the party attacking it is driven to his revocatory action. C. C. 1973,1974, 1976. It is only in those cases where no title was intended to pass for the benefit of the transferee, or where it is but a mere cloak or mask, that it may be treated as a nullity, and the property seieed in the first instance. 1 Ann. 299. Even in these cases the burden of proof on the injunction appears to be upon the seizing creditor to show the simulation. 10 A. R, 691.
Under our law the consideration specified in a deed is not conclusive. The cash specified in plaintiff’s- deed, being the precise amount of the acknowledged indebtedness of if.- A. Carson to him, may, under the proof in the record, be considered, without violating ordinary language, as identical with such indebtedness. The law declares that the immovable was delivered to the plaintiff by the notarial act of sale. C. C. 2455. There has been no attempt to rebut this legal presumption. On the contrary, the proof shows that if. A. Carson resided in the parish of Ouachita, where defendant’s judgment was rendered against him, whilst the plaintiff resides in the parish of Union, where the notarial act was passed, and where the land lies, the ownership of which the plaintiff claims. I think, therefore, in the absence of all proof to the contrary, that the land must be held to be in the possession of the plaintiff.
As it respects the pleadings, I think the allegation of the plaintiff, that he is the owner and that the Sheriff has illegally seized his property, is a sufficient affirmance that the plaintiff had possession under his title, which was disturbed by such seizure. Now, as the presumption of possession has not been rebutted by the defendants, the burden of proof is upon them to show that the sale was simulated, and not upon the plaintiff to show that it is hona fide. C. C. 1915, 2456. No principle of law is better settled than that fraud and simulation must be clearly established by proof. They are not to be presumed. I cannot see any other safe rule of proceeding, than to follow these positive requirements of the Code. They are the only sound basis upon which titles to real estate can rest with any security. If bad faith in the transfers of real estate, were to be presumed instead of good faith, few would be secure in their possessions. For there are but few who would be able to prove all the circumstances of the payments for their slaves and immovables.
I think, therefore, that the j udgment of the lower court ought to be reversed, and that the seizing creditors should be left to their revocatory action.