
    Peters & Millard v. Mrs. C. Toby.
    A friend of Mrs. Toby, whose husband was in embarrassed circumstances, advanced money to invest for her benefit. Some portion of the money thus advanced was appropriated to the purchase of the property which has given rise to this suit, some of it was appropriated to its improvement. The title to the property was taken in the name of Lockett, but for many years Mrs. Toby and her family resided on it, and she, to all appearances, was the owner. Lockett, set up a claim against Mrs. Toby for rent, she disputed the claim and he denied her title, which was, at once made the subject of litigation between them. '1 he Court sustained Mrs. Toby. The present plaintiffs, having recovered a judgment against Lockett, and having recorded it, before the decree in favor of Mrs. Toby in the suit for the property was rendered, brought the present action against Mrs. Toby, alleging that they had, by virtue of their recorded judgment, while the title stood in Lockettname, a mortgage to secure the payment of their debt. But it appearing that plaintiffs were always aware of the true situation of the parties in relation to the ownership of the property, and as it did not appear that plaintiffs credited Lockett upon the strength of his apparent ownership \ it was held that Mrs. Toby's title was not affected by the mortgage of the plaintiffs against Lockett,
    
    from the District Court of Jefferson, Olarke, J.
    
      0. Eoselius, for plaintiff and appellant.
    
      E. JST. Ogden, for defendant.
   Buciianan, J.

This proceeding has the form of an hypothecary action, instituted in the via ordinaria after ten days previous demand of defendant to pay ajudicial mortgage hold by the plaintiffs against one Henry Lockett, and which they pretend bears upon property in the possession of the defendant.

The petition, after stating that plaintiffs had obtained judgment against Lockett in the First District Court of New Orleans, allege that their judgment was recorded in the parish of Jefferson on the 18th May, 1818, at which time Lockett held a written title to certain real estate situated in said parish and particularly described ; which real estate, says the petition, has, since the recording of said judgment, been decreed by the judgment of the District Court, affirmed by the Supreme Court, to belong to defendant, who occupies the same.

The defendant pleaded besides the general issue, that the property described in the petition was and always had been occupied by himself, and had never been liable to the judgment of plaintiffs against Lockett; that although Lockett had held a written title to said property, yet the plaintiffs had always been aware that Lockett never had either the possession or ownership of the same, but that it really and truly belonged to defendant; and that the judgment in the suit of Toby v. Lockett, referred to in plaintiffs’ petition, had not conferred any new title upon defendant, but only recognized and decreed that she had always been the real owner of said propert}'.

From these pleadings it appears that plaintiffs have no claim against defendant directly, but only in virtue of a recorded judgment against Lockett. They are seeking to render property which they acknowledge to be in the occupancy of defendant, and to belong to defendant, liable in satisfaction of their judgment against Lockett.

The plaintiffs do not pretend that the property now belongs in reality to Lockett. Thej' do not allege any error, fraud, collusion, or other nullity in the judgment by which, (to quote the language of their petition) “said square, buildings and improvements, have been decreed to belong to Madame Olemence Toby of said parish of Jefferson, who occupies the same.”

They appear to rely entirely upon the fact that the judgment in question was rendered since the recording, in the parish of Jefferson, of their own judgment against Lockett.

To this the defendant replies, “ true it is, my judgment against Lockett was rendered after the 18th May, 1848. But that judgment conferred no now title on me.. It merely recognized a preexisting title in mo, not derived from Lockett, but adverse to his pretended title ; which by the same judgment was pronounced to have no effect or validity.”

The record of the suit of Henry Lockett v. C. Toby, was offered by defendant and received in evidence without objection. From this record it appears that Lockett having instituted a suit against Mrs. Toby before a Justice of the Peace, in the parish of Jefferson, claiming rent for the premises in question, Mrs. Toby sued out an injunction in the District Court, for the parish of Jefferson, on the 5th January, 1850, denying Jiockctts title to the property, andal-leging that the Justice of the Peace was without jurisdiction to try the title to real estate ; professing at the same time her willingness to try the question of title to said property in a regular petitory action, before a Court of competent jurisdiction.

In answer to this petition Henry Loakett, assuming the character of plaintiff in a petitory action, claimed the property in question as belonging to himself in virtue of a purchase by authentic act from William He Gawley on the 2d November, 1838 ; and prayed for citation and for a julgment against Mrs. Tobyi decreeing him (Lockett) to be the owner of the property, to be put in po sses-sión of the same, and to recover of defendant one thousand dollars damages for her alleged detention of the same. To this demand Mrs. Toby joined issue, and answered, alleging that the purchase made by Lockett on the 2d Nov. 1838, from William McOawley, although made in his own name, was in reality made for Mrs. Toby, and paid for with her money ; that Lockett was the trustee of her, Mrs. Toby, and never the real owner of the property; that she had made large and valuable improvements on the property ; that herself and family had resided thereon for ten years and upwards; that she had always been esteemed the owner, and recognized as such by Henry Loelcett himself, until he brought the suit against her before the Justice of the Peace.

Mrs. Toby's answer concludes by praying to be decreed the true and lawful owner of the property.

Upon this issue the defendant had judgment, which, upon appeal, was affirmed by the Supreme Court, as stated in plaintiffs’ petition.

It is manifest from this examination of the record in question, that the defendant does not hold by a title derived from the judgment debtor of the plaintiffs, but by a title adverse to his. The judgment in the case of Lockett v. Mrs. Toby, has established the fact that Mrs. Toby was the owner of the property in question, since November 2d, 1838; and we do not see how the creditors of Lockett can have greater rights upon the property than Loakett himself. The mortgage lien of plaintiffs in virtue of the registry of their judgment, necessarily depends upon the ownership of Lockett. This failing, the lien fails with it. If, indeed, it had been alleged and proved, that the suit and judgment between Lockett and Mrs. Toby was collusive, the case would be different. If it even appeared that Peters & Hillard had given Lockett credit on the strength of his apparent ownership of the land in question, an equity would have existed in favor of the plaintiffs, which the case is now far from presenting; for it is alleged by defendant, and has been proved' to our satisfaction, that the plaintiffs were always aware of the true situation of thirigs in relation to the ownership of this property.

There cannot bo a doubt that the circumstance of a person allowing another to hold the paper title of property of which he is the real owner and possessor is highly suspicious, and that the uniform current of decisions in this State has been to discourage simulation, and to prevent the public registers from becoming a vehicle of falsehood and deception. For that purpose, the greatest latitude has been allowed to creditors and others interested, to show the real nature of conveyances made to their prejudice. But wo look in this record in vain for any evidence of injury done to these plaintiffs by the imprudent and misplaced confidence of the defendant in Mr. Loakett, as manifested by her suffering her property to remain in the name of the latter for so many years. The account that defendant gives of her acquisition of this property is, that it was purchased for her as a home, by means of a donation of funds made to her for that purpose by a friend, and that soon after its purchase, it being entirely unimproved, defendant’s husband commenced to build for her a dwelling house, and to make all necessary improvements upon it, paying for the same out of the said donation; and one of the witnesses of defendant, Alexander Baggett, the builder of the house of defendant, on this property, confirms by his evidence this allegation of the petition. He says that it was well understood by Mr. Peters, one of the plaintiffs, at the time the witness was building the house, that Mr. McKinney had furnished the funds for the purchase of the property and for the building, and that it was intended as a home for Mrs. Toby. Witness understood that this fund was a gift from McKinney to Mrs. Toly. In these conversations (between the witness, Toly, Lockett and Peters) it was understood that, as Mr. Toly had failed sometime before, the property was bought in the name of Lockett as a friend of the family, to protect it for Mrs. Toly from the creditors of her husband. Now in all this, it does not appear that any parties had an interest adverse to the title of defendant, except the creditors of Toly. But no creditor of Toly has presented himself. There is neither allegation nor proof that Peters & Millard are creditors of Toby; and if they were, the presumption of fraud is most strongly repelled, by the circumstance that they were informed at the time that the purchase, though made in Lockett’s name, was made for Mrs. Toly's account. Nor does this witness, Baggett, stand alone. Francis Gasten, the confidential clerk and book-keeper of plaintiffs, a witness introduced by plaintiffs, and intimately acquainted with all the parties mentioned, proves that the property was always called and looked upon by the public, as Mrs. Toly's; and that he, himself, never heard that Lockett had any claim to it until the institution of the petito-ry action. Peters, Lockett and Toly, says this witness, were intimate friends.

Upon this state of facts, we do not think that plaintiffs are entitled to maintain this action,

It is therefore adjudged and decreed, that there be judgment for defendant, ■with costs in both Courts.

Slidell, C. J.

It is not alleged nor proved that at the date when plaintiffs became the creditors of Lockett and recorded their judgment, or since, the legal title in Lockett was recorded ; which it is fairly deduciblo from evidence, admitted without objectioi), and while the District Judge believed, that at those dates, the equitable title then existing in Mrs. Toly and accompanied by long, open and notorious possession, was known to Peters. In consideration of above circumstances, I concur in the affirmance of the judgment.  