
    
      PEET & AL. vs. MORGAN.
    
    Appeal from the court of the first district.
    An action lies against a sheriff> wl‘° esgoods :ther than those of ⅛ execution"*
    A plaintiff execution cannot teize ^e^et^aLt ‘0" ground” the sale to fe u
    
    
      TJng 'pjvl\ Jie wL 'mu¡r *«*■
    
   Porter, J.

delivered the opinion of the mi • . - . , . court. 1ms is an action against the sheriff the parish of New Orleans, for seizing the property of the plaintiffs. The defe ce is, that the goods mentioned in the petition were _ . . the property oi one STDevitt, against whom an attachment has issued, and that if any sale them had been made to the plaintiffs, it was false, fraudulent, simulated, and collusive.

On this head, the defendant offered testimony to establish the^facts set up in his answer. The court refused to receive it, and he excepted. This rejection of his evidence was followed by a verdict against him, and judgment in pursuance thereto, from which he has appealed.

In this court he has made two points: first, that no action lies against a sheriff, for a mistake in seizing the goods of a oerson other than the defendant in execution; and second, that the court erred in rejecting the testimony offered, to prove the sale was simulated and fraudulent.

1st. The only reason offered for this doctrine is, that by the laws of Spain various provisions existed, by which the party whose goods were seized might oppose their sale; and 2d, that the plaintiff under that system pointed out the goods that were to be seized, consequently, that he alone was responsible.

The first of these reasons is neither incompatible nor inconsistent with the right of suing also for damages. The second is not at this day the law in Louisiana. It is the duty of a sheriff when a writ is put into his hands to go gmd execute it, whether the plaintiff is here or not to point out the property. Such is the ne-sessary consequence of the language used in . the writ, and the directions of the statute. It is contended the officer is nothing more than the agent of the plaintiff: admitting he is not, no man can protect himself from a trespass, by averring he is the agent of another, unless the person whom he represents had authority to do the act complained of Even if the doctrine for which he contends were true, he has not brought himself within it, for he has not shewn that he was directed by the plaintiff in attachment to seize the goods. Martin’s Dig. vol. 2, 166, 168 and 169.

The second point presents the question, whether the plaintiff had a right to seize these goods, before he brought an action to set aside the sale. It has been determined in a variety of cases decided in this court, that a creditor had not a right on an allegation of fraud to treat the alienation made by his debtor as null and void, and seize at once, and by short hand, the property conveyed by him. Sincehthat doctrine has been recognised by this tribunal, there have been it is true, cases, where the parties have chosen to put their respective rights at issue in an qction brought for the seizure, and the court has not declined to pass on them, - when they did so. The present case however, presents the exception on the part of the vendee, J. and the argument on the behalf of the creditor has called our attention particularly to the correctness of this doctrine; the extent to which it may be carried; and the limitations to which it is subject. 9 Martin, 648, 3 n. s. 338. Baburin vs. Descontreaux. Henry vs. Hyde

Of its correctness the court entertains no doubt. It is clearly supported by authority, and it is sanctioned by reason and utility. The principle on which it rests is, that men are presumed to act honestly, until the contrary is pro" ved: that the conveyances alleged to be fraudulent are prima facie correct and lair; and that it is improper in opposition to these presumptions, the creditor should exercise rights that could only properly belong to him, in case the acts of his debtor were null and of no effect. In many instances should a contrary doctrine prevail, sales which were alleged fraudulent, might turn out to be oona fide, and the purchaser be deprived of the use and enjoyment of property which was honestly his. In the uncertainty which must prevail until the matter undergoes a judicial investigation, it is certainly the wisest course, and the one most conducive to general utility, to consider thing sold as belonging to him, in whom the title is vested.

But in the application of these principles, it will be readily perceived, that though it properly governs all cases where the conveyance is by public and authentic act, its utility is not so manifest when the alienation is by a private instrument. The former is presumed known to the creditor. Its date is established, and he acts in direct violation of the presumptions which these facts create, when he treats it as a nullity, and proceeds to seize the property conveyed by it. In the latter the sales is unknown to him, the conveyance is of no certain date, and no notice is given that a transfer has been made of the property.

If the date of the conveyance is subsequent to the seizure by the creditor, it is a self evident proposition that it cannot be objected to his right of seizing, that he did not bring an action to set aside the sale. If the rules of law recognise, as they do, no date to an act sous seing prive,hut that of the day on which it is opposed to a third party in court, then the proposition is equally evident, that it is not a good defence to make to the seizure, that suit wag not brought to avoid the alienation. In both instances the answer is conclusive, that the creditor could not by an action previous to the levy made under the execution, set aside acts which were not made until after the levy took place.

But if to this rule of law in relation to the date of acts sous seing prive, the party claiming the goods answers as he may, that he can prove by circumstances dehors the act that it was really made at the time it purports to be executed, it is necessarily open to the creditor, to rebut that proof, by other testimony which will establish that it was not.

That evidence the plaintiff was under the necessity of producing here, and in refusing the defendant the right to shew that the sale was simulated, that is made at a date different from that which it purported, we are of opinion the court erred.

The only case in w hich this court has sustained the objection to a seizure, when the sale wasmade byact sous seing prive, is the case of Richards vs. Nolan, but that case was heard ex parte, and the point now raised was not. presented to our consideration. 3 n. s. 33&

Hennen for the plaintiff, Watts Sf Lobdell for the defendants.

Being therefore of opinion that the court be-0 r low erred in rejecting the evidence, we go into the questions made by the appellee. They will be proper subjects for consideration if the cause should again come before us on the merits.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be annulled, avoided and reversed, and it is further ordered, adjudged and decreed, that the cause be remanded to the district court with directions to the judge not to refuse evidence which will shew the date at which the sale relied on by the plaintiff was really made. And it is further ordered that the appellees pay the costs of this appeal.  