
    No. 1438.
    Schneider & Zuberbier v. N. Dreyfus. — W. H. Letchford & Co., intervenors.
    To avoid the examinations of issues improperly raised by the answer, the more regular practice is, to object to the introduction of testimony to sustain them. 20 An. 198. •
    Wheroashle of personal property has been completed by delivery (although fraudulent), the judgment creditor of the vendor cannot seize it in the hands of the purchaser until the sale is declared null by a revocatory action ; the case is different in a simulation.
    from the Sixth District Court of New Orleans. Duplantier, J.
    
      Honor i§ Benedict, for plaintiffs and appellants. ■ Bradford, Lea & Finney, for defendant and appellee.
   Ho weli., J.

Plaintiff brought suit against defendant for the amount of a hill of groceries, and, claiming the vendor’s lien, caused the goods sold to he sequestered. W. II. Letcliford & Co., wholesale dry goods merchants, intervened, claiming to be the owners of said goods by virtue of a transfer, by authentic act, of the contents of the grocery store of defendant, including the goods sequestered, delivery of which, it is alleged, was made before the seizure herein. Plaintiffs answered, charging said sale to he fraudulent and simulated. Judgment was rendered in favor of the intervenors, and the plaintiffs appealed.

It is shown that the deputy sheriff, charged with the writ of sequestration, found a man, wearing the badge of a police officer, in possession of the store, who referred him to the chief of police. The deputy afterwards, under instructions from the sheriff, applied to the chief of police, and was there informed that Letcliford & Co. had purchased the said store, and was furnished by the chief’s aid, named Boylan, with an order to the officer in charge of the store not to interfere with the sheriff. With this order the deputy and Boylan went to the store of Letchford & Co. to inform them of the intended seizure. Prom there tliey went to the store of plaintiffs, and thence to make the seizure— all on the twenty-first September, 1866. On the trial, Letcliford & Co. introduced in evidence tbe notarial act of sale, dated September 18,1866, from defendant, Dreyfus, to them of tbe stock, fixtures and appurtenances of a grocery store at tbe corner of Magazine and Orange streets for tbe price of $5398 09, received by satisfaction and settlement thereof being endorsed, by tbe vendees and holders, on tbe note of tbe vendor, Dreyfus, for said sum, dated September 7, 1866, and due at sixty days from its date, which seems to have been retained by tbe vendees. This act was witnessed by Boylan and Izard, two aids to the chief of police, who bad accompanied a Mr. Moss, of tbe bouse of Letehford & Co., to the store of Dreyfus on tbe day of sale, which visit resulted in all tbe parties repairing to tbe office of the notary to pass the act of sale, after which, on tbe same day, tbe store was closed and tbe keys with tbe lease turned over to Moss, who placed tbe first mentioned police officer in charge as keeper — Dreyfus appearing not to have anything more to do with tbe store thereafter.

These aids to tbe chief of police profess that they acted in tbe matter simply as private individuals, and that no intimidation was used to induce Dreyfus to execute the act of sale. Letcliford & Co. also show that Dreyfus was indebted to them for goods in tbe amount of tbe said note and for which tbe note was given, but was not due at the date of tbe sale.

It is evident, notwithstanding the unusual circumstances, that the sale was real and was followed by delivery of possession prior to the seizure under the writ of sequestration; but plaintiffs contend that, the property being movables, it was unnecessary to resort in the first place to the revocatory action, and they quote the cases of Kirkland v. Gas Company, 1 A. 299, and Jonan v. Dreux, id. 364, as authority to sustain them; and they further contend that, admitting the rule of practice to be otherwise, such rule cannot be applied in this case, as the intervenors did not file, in limine, an exception to the plea of fraud set up in the answer to the petition of intervention, in support of which they cite the case of Dangian v. Blacketer, 13 A. 595. On this point they reserved a bill of exceptions to the action of the judge a quo in sustaining the motion of the intervenors to strike out of the answer the charges of fraud and unjust preference and to hear no evidence thereon, which motion was made after the trial on the merits had begun and evidence admitted, and to which motion plaintiffs objected on the grounds substantially:

1. That the intervenors, not having excepted to the answer, and the parties having gone to trial on the pleadings, the motion came too late.

2. That plaintiffs had a right in law to be heard under said pleadings.

I. The first ground is not supported by our rules of practice. Except tions to answers are not required in our system. All the allegations of tbe answer are considered as denied by the plaintiff (C. P. art. 329), qnd two modes bayq beep, -followed tb exclude an examination qf isgppg improperly presented: one by striking out on motion, and the other by objecting to the admission of evidence to establish them; both being in effect the same, but the latter is deemed the more regular. See Lallands v. Ball, 20 A. 193.

II. The second ground presents the broad question of the right to attack collaterally an actual but fraudulent sale of movable property. The rule is admitted to be different in regard to a like sale of immovable property. The only case, in which we are aware a distinction has been made, is that of Kirkland v. Gas Company, 1 A. 299, quoted by jilaintiffs, in which the distinction seems to be based on the wqnt of knowledge in the seizing creditor of the fact of the sale — such knowledge not being presumed in sales of property not required to be made in writing and recorded for the information of all persons.. But we are unable to perceive that the law authorizes a distinction to be made on account of the character or nature of the property. The correct rule we consider to be this: a creditor may at his peril seize under any of the writs authorized by law, and if a third jiossessor shows that ho holds under a real contract, .the seizing creditor will be required to desist (except whore his proceeding may be specially permitted by law), and to resort to the revocatory action. If, on the other hand, the alleged transfer is proven to be a simulation, a mere shadow casf upon the real title, the court takes no notice of it and the seizing creditor is allowed to procoed. Bee 1 A. 364; 2 A. 912; 14 L. 426 ; 2 K. 99; lilt. .288; 6 A. 193; 18 A. 732; C. C. 1978. The only .question then that can be examined collaterally, in such cases, is that of simulation. In this case the right to seize was predicated solely on the vendor’s lien, and as there was a real sale, and delivery was made prior to the seizure, the lien was thereby lost (C. C. 3194,) and the annulling of such sale for fraud could not restore the privilege and thus maintain the sequestration, but would subject the property fraudulently transferred to the payment of the plaintiffs. C. C. 1972. The Codo contemplates that contracts made in fraud of creditors shall be annulled by the revocatory action, and this only when the debtor has not property sufficient to pay the complaining creditor. C.' C. 1965, 1966.

We must conclude that the plaintiffs could not in this indirect mode set aside a sale although fraudulent and subject the property to thpir writ of sequestration, and that the Judge a quo did not err in refusing to try the question of fraud on the intervention. He did not restrain them from proving simulation!

Judgment affirmed.  