
    KELSO vs. BEAMAN.
    Western Dist.
    
      October, 1836.
    APPEAL FROM THE COURT OF THE SIXTH JUDICIAL DISTRICT, THE JUDGE THEREOF PRESIDING.
    A purchaser at public sale of a right or debt alleged to be due by another, becomes the assignee of him who was the supposed creditor and owner of the claim; and he cannot exercise the rights thus acquired in any manner than the supposed creditor or assignor could have done.
    As assignee, a party cannot avail himself of any fraud or collusion between the assignor and the debtor, against whom he seeks to enforce his claim.
    This is an action to recover the amount of a debt due by the defendant, to one Gilbert C. Russell, which the plaintiff purchased at sheriff’s sale.
    The principal facts were reported when the case was formerly before this court. See 6 Louisiana Reports, 87.
    In August, 1828, one J. W. Wing, as agent of Russell, mortgaged certain slaves and a plantation, belonging to the latter, to C. Beaman, ostensibly to secure seven thousand eight hundred and ninety dollars, but which in fact, according to a settlement between the parties in January, 1829, only amounted to three thousand five hundred and forty-two dollars, for which the mortgage was recognized and ratified by Russell himself.
    In October, 1829, Russell being in embarrassed and insolvent circumstances, several judgment creditors of his levied executions on the mortgaged property in Beaman’s hands, and sold all Russell’s interest therein, and.which was purchased in by Beaman for nine thousand eight hundred and ninety dollars, being two thousand dollars more than the nominal amount of his mortgage. At this sale the parish judge’s certificate was read, setting forth Beaman’s mortgage for the entire nominal amount, for which it had been given originally, to wit: the sum of seven thousand eight hundred and ninety dollars, and that the purchaser must bid over and above this sum, before the mortgaged premises could be sold.
    
      The plaintiff further alleges that Beaman became justly indebted to Russell, for whatever amount the nominal mortgage of seven thousand nine hundred and eighty dollars exceeded the sum originally due from Russel, to wit: the sum of four thousand three hundred and forty-eight dollars.
    He further shows that he being also a judgment creditor of G. C. Russell, he levied his execution on this debt in Beaman’s hands, and on the 25th February, 1834, the whole together, with all G. C. Russell’s right, title and interest was adjudicated to him, the petitioner, of all which proceedings Beaman had due notice. He further alleges, that Beaman is now indebted to him for the sum of five thousand dollars, including the above debt, interest and costs; but that there has been fraud and collusion between the said Russell and Beaman, for the purpose of defeating the just creditors of the former, and by reason of this Beaman is indebted to him for said sum. He prays judgment for the amount of his said demand.
    The defendant pleaded the general issue, and denied specially that he was or is now indebted to G. C. Russell, in any manner whatever. He further avers that the questions involved in this suit, between the same parties, have been finally decided in favor of the defendant, wherefore he pleads res judicata; and finally in this court the prescription of one year.
    The evidence showed that at the timé Beaman purchased the property in at sheriff’s sale, Russell was then, and previously, insolvent. Beaman was an overseer on Judge Johnston’s plantation, and in moderate circumstances. That he continues to hold the negroes purchased in by him, except those that died, to the number of about twenty.
    Thomas, a witness for plaintiff states that he had executions against Russel, and told Beaman he must bid the amount of them, or he, witness, would bid in the property, if he would not agree to pay them off. That Beaman was aware of the amount that witness had in his hands against the property, and the conveyance he had of the slaves from Russell, and also the possession and counter letter witness bad given Russell. That Beaman gave his twelve months’ bond for the amount of the sale of the slaves, over and above the amount of his mortgage, and paid witness about one thousand two hundred dollars over that. Witness says he would not have given the amount of Beaman’s nominal mortgage for the property, subject to certain suits vs. Russell, called the Montgomery claims. That he expects as attorney of Montgomery, to recover a large amount; and that he considers Beaman had a hard bargain, &c.
    . The district judge gave judgment for the defendant, from which the plaintiff appealed.
    
      Dunbar, for the plaintiff.
    
      Thomas, contra.
    
   Martin, J.,

delivered the opinion of the court.

The facts of this case are briefly these. In 1828, G. C. Russell mortgaged to the defendant, a plantation and slaves for the sum of seven thousand eight hundred and ninety dollars.

In the month of October, 1829, the mortgaged premises were seized and sold, at the instance of several judgment creditors of Russell, and was purchased in by the defendant Beaman, for the sum of two thousand dollars, above the amount of his mortgage.

Afterwards, to wit: on the 23d of October, 1829, Russell and Beaman entered into a written agreement, in which they declare and stipulate, “ that if the said G. C. Russell shall pay to him (Beaman,) the said sum of two thousand dollars, and also the sum of three thousand five hundred and forty-two dollars, being the true balance, in fact, due on the above mortgage, as appears by an instrument filed in the office of the parish judge of Rapides,.dated the 17th January, 1829, or such an amount as may be fixed on under a reservation in said instrument; as well as all such costs and charges, and interest, as may be justly due thereon; and also such sum as he (Beaman) may be bound to pay on the final decision of a suit now pending in favor of Elijah Montgomery against said Russell, on account of said property, and all costs, interest arid charges he may be at in defending said suit; also, whatever sum he may pay on account of judgments or liens on said property; then, and in that case, he (Beaman) obligates himself to re-convey said property to the said Russell, provided the said payments be made on or before the first of January, 1831.”

.. , - the assignee of supposed"cred¡-íí¡ea ciaim^and h.e cannot exer-cisc the richts thus acquired in nerthanTiie^upI P°set\ «^editor or assignor could have done. A purchaser at public sale of a right or debt alleged to due > an°-

“And it is moreover understood, that the purchase of the said property was made at the instance and request of the said Russell, and that he (Russell) renounces any claim he might have against the said Beaman on account of the difference between the price of the aforesaid negroes and the aforesaid sum of three thousand five hundred and forty-two dollars, fixed on as before stated, as the true sum due the said Beaman on the aforesaid mortgage.”

In February* 1834, the plaintiff purchased, at a sheriff’s sale “ the whole debt due by Beaman to Russell, and all the right,' title and interest which the said Russell might have in and to any species of property in the hands of said Beaman, either real or personal, rights or credits, or any balance which might be due from the said Beaman to the said Russell.”

The present action is brought to recover the sum of five thousand dollars, which is alleged to be due to the plaintiff on account of his purchase. There is also an allegation, that there has been fraud and collusion between the said Russell and Beaman, for the purpose of defeating the just creditors of the former.

The defendant pleaded the general issue. judgment in his favor, and the plaintiff appealed. There was

The appellant stands before us as the assignee of Russell’s rights, and cannot exercise them in any other manner than Russell could before the assignment. These rights result o o from the instrument bearing date the 23d October, 1829. We have looked there in vain for any clause that might authorize in Russell an absolute demand of five thousand dollars, or any other sum. He might indeed, under that instrument, on a payment or tender of certain sums of money, and on showing the release of the defendant from the responsibilities which he had incurred for Russell, have demanded a reconveyance of the mortgaged premises, and an account of the revenues produced by them. This he has not done. And it is even doubtful whether it could have been done after the expiration of the time limited in the instrument.

As assignee, a avaií himseiTof íuíion^bebreen the assignor and gainst -whom he his ciaim?nt'°rCe

As assignee of Russell, the plaintiff could not have availed ^lmse^ °f any fraud or collusion between the former and the defendant. If this fraud gave any action to the creditors of the former, it was, perhaps, restricted to a demand of the rescission of the sale under which the defendant had acquired the mortgaged property. This right could only have been exercised by instituting suit within the year.

In relation to the charge of fraud and collusion, we are without any evidence except that which is presented to us in the transaction, of which the instrument, dated the 23d of October, 1829, is the evidence. We are not ready to say that any fraud or collusion is shown, or results therefrom.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed with costs.  