
    No. 51.
    Thomas Edwards, Curator, v. Rice C. Ballard.
    The character of an action is determined by the prayer of the petition for judgment.
    The action en declaration de simulation is one of revendication, and has for its object to have the contract declared judicially a simulation and nullity.
    An action to recover the price >f property old, where the vendor alleges that the sale was a simulation, is one sounding in damages, and is prescribed against by the lapse of one year. O. O. 3501.
    No prescription lies against the United States.
    APPEAL from the District Court, Parish of Madison, Farrar, J.
    
      Alex. T. Sleele and B. O. Stockton, for plaintiff.
    
      Alonzo Snyder, Ed. Sparrow and II. M. Spofford, for defendant.
   Idsdet, J.

This is the second time this case comes before this Court; the first appeal, reported in 14th Annual, p. 362, having been taken by the plaintiff from a judgment against him, and the last, by both parties from a verdict and judgment in favor of the plaintiff and against the defendant, for the sum of one hundred thousand dollars.

This Court, in its opinion rendered on the first appeal, considered the action as one “for the recovery of lands and slaves, alleged as being in the defendant’s possession by virtue of a simulated sale from Silas Lillard,” of whose vacant succession the plaintiff is the curator, and the Court said that the prescription of one, five, and ten years did not bar the action, which was en declaration de simulation.

The defendant contends that the Court misapprehended the true nature or character of the plaintiff’s action; that it was not one for the property, or to have the sale attacked, declared a simulation, but one in which a money-judgment exclusively is prayed for, and that the action is a mere personal one, or one sounding in damages.

By the decree of this Court in the first appeal, the case was simply remanded to the District Court for a new trial, the Court below being instructed to apply certain legal principles; but nothing in this decree precluded a re-examination of all questions presented which are still open. Marigny v. The Union Bank, 5th Rob. 366, and also, in 12 Rob. 283; Pepper v. Dunlap, 5 An. 200; Millaudon v. Davis, 17 An. 97; Marcadé, Vol. 5, 386.

In order to determine the character of an action resort must be had to the prayer in the petition for judgment. 10 La. 109; 1 Rob. 109; 10 An. 157; and also the prescription applicable to it. 12 An. 357, and 13 An. 609.

The action en declaration de simulation is an action to have a contract declared judicially a simulation and a nullity, to remove a cloud from the title, and to bring back, for any legal purpose, the thing sold to the estate of the true owner. It is essentially one in revendication and never of condition. The present action, tested by the prayer of the petition, lacks the essential features of an action eh declaration de simulation. The prayer does not ask that the sale be declared simulated and null, it only asks for money, the value of Dillard’s property alleged to be held by simulated title, by Ballard since 1840.

The action en declaration de simulation might have been resorted to by the plaintiff for the largest part (more than 19-20 of the whole property) as that was in the possession of Ballard and of Mrs. Lillard, his alleged particeps fraudis, when this suit was brought, for the plaintiff says that a considerable portion of the lands, which he values at §132,000, was conveyed by Ballard to her without any consideration, as her part of the spoils, and to seal her lips. To that part of the lands, conveyed by Lillard to Ballard in detached parcels, which Ballard sold to Mrs. Lillard, the vendor, Lillard, never had any title at all, for in his act of sale to Ballard, the title is stated to be in the United States, against whom no perscription lies.

Whether that circumstance caused the resort to the present action for a money-judgment is perfectly immaterial. Our action is confined to the case as it is now presented to us; and we deem the pleas of prescription, under the pleadings, a bar to the plaintiff’s present action, which we deem a personal one, if not one for danrages. See articles 3501 and 3508. O. O.

A suit growing out of the sale from Lillard to Ballard, passed on 28 th April, 1840, had been instituted by the present plaintiff against the defendant; but that suit did not interrupt prescription, as it was voluntarily discontinued by the plaintiff. C. C. 3485; Denniston v. Rist, 9 An. 464; Smith v. Gibbons, 6 An. 684.

It is therefore ordered, adjudged, and decreed that the verdict of the jury be set aside, and the judgment of the District Court annulled, avoided and reversed; and it is futher ordered, adjudged and decreed, that judgment be and it is hereby rendered in favor of the defendant, Rice O. Ballard, or his succession, and against the plaintiff and the vacant succession of Silas Lillard, and that the said vacant succession pay all costs of suit in both courts.

On Rehearing.

InsnEV, J.

A rehearing was granted in this case on the petition of the plaintiff’s counsel.

He has not contested any statement of law or fact in our original opinion, but he now urges that his oase should be taken out oí prescription, because he asserts that Ballard was a depositary of property owned by Lillard’s creditors, and that no length of time can give a valid title when the original title was to him as a trustee.

This is not a suit for the recovery of a deposit, nor is it a suit for any specific property. It is an action for money, and we are greatly aided in determining the nature and classification of an action like the present one by the decision of our predecessors in the case of Nouvet, Syndic, v. Bollinger et al., 15 An. 293. We quote the language of that decision“The plaintiff claims that the insolvent, Ballelin, made a donation of the slave Ellen Shockley to Mrs. Bollinger (who had full knowledge of his insolvency) in order to place her beyond the pursuit of creditors, and avers the nullity of, the act of donation, whether, deemed 'fraudulent or not. The plaintiff also avers that said slave has disappeared from the possession of the insolvent and Mr. and Mrs. Bollinger, and petitioner verily believes was sold by Mrs. Bollinger for $700, to some distant purchaser. ”

The Court, upon this statement of the allegations, remarked: “If the defendant’s ancestor parted with the slave for the express purpose of defeating the rights of creditors, there can be no doubt that an action will lie to recover the value of the slave so sold or removed. The ariion is well known in the civil law as the action de alienatione judicii muiandi causa facta. And so it is said concerning such sale, Hague si alterius provincia hominem, aut potenliorem nobis, appossuerii adversarium, tenebitur. Dig. 4, 7,1. So Mackelday, says: ‘ ‘ Lorsque l’aliénation, qui n’est jamais reseindée elle-méme, consiste en ce que le possesseur d’une chose l’aliene dans la crainte d’etre actionné relativement á cette chose, celui á qui cette alienation porte prejudice a une action in faclum en dommages-intérets contre celui qui aliene.” Partie G-énérale, see. 256, edition 1846, See also, 7th Savigny, sec. 316, No. 1, to the same effect.

“The action under our law is included under the general provisions of article 2294 of the Civil Code. ”

Again, in the same case, the Court said: “We can see no good reason why he (the syndic) should not also be permitted, by the aid of courts of justice, to recover damages for property destroyed or abstractedfrom the mass, when otherwise there would be a failure of justice.”

A suit of this character having thus been decided to be a suit for damages, authorized by that article of our Code, which provides that “ every act whatever of man that causes damage to another, obliges him by whose fault it happened to repair it.” The prescription applicable to this suit is obviously that of one year. Civil Code, Art. 3501.

The only remaining question is, when did this prescription of one year commence to run?

Art. 3502, declares that the prescription mentioned in the preceding article runs from the day “the damage was sustained,” du jour ou l’injure, le trouble ou le dommage á été souffert.

There is a rule, not formally announced in the Code, but fully recognized in our jurisprudence, that prescription does not run while there is an inability to sue: Oonirct non valentem agere non currit prcescriptio. The converse of this maxim is equally true, Contrd valentem agere currit prcescriptio.

It has been held in numerous cases, that prescription attaches to a right the moment it can be exercised. Hennen’s Digest, Prescription, Y. (a) No. 2.

It is manifest that the plaintiff could have exercised the right of bringing this action more than one year before he did, and that the damages, if any, sustained by Dillard’s creditors, through the fraudulent acts alleged against Ballard, were sustained many years before this suit was brought.

The plaintiff in his various pleadings in the record, discloses that all the acts of Ballard, for which the damages are claimed, were known to him more than a year before he concluded to seek the remedy he is now pursuing. There was nothing to prevent him from seeking that remedy within the period limited by law for such an action, and as the prescription, sustained by our judgment, is one liberandi causa, it is immaterial whether the defendant has acted in good faith or not. C. C.349G. The neglect of the creditor operates the prescription in this case.

For these reasons, and those given in our former opinion, it is now ordered, adjudged and decreed, that the judgment heretofore rendered in this case, remain undisturbed.

Hyman, C. J.

The law of Louisiana permits persons to make simulated sales, that is to change, apparently but not really, the ownership of property.

If they are made for the purpose of defrauding creditors or not, they and those who may have claims or rights against the pretended vendor, may disregard and treat them as nullities; no other persons can do so.

The pretended vendee is but the agent of the pretended vendor, and he is responsible like any other agent to his pretended vendor, (who is his principal,) for malperformance of his duty, and prescription of ten years, only destroys the right of action of his principal for damages caused by the malperformance of duty. Oivil Code, 2956, 2971, 3508.

Judge Labauve concurs with Judge Hyman.  