
    
      DE FLECHIER'S SYNDICS vs. DEGRUYS.
    
    Appeal from the court of the first district.
    An act sous seing prive, not followed by actual delivery, has no effect against third persons.
   Matthews, J.

delivered the opinion of the court. In this suit the syndics claim, as belonging to the estate of the insolvent, a certain tract of land described in the petition, being the same claimed by Dufau, in a case recently decided in favour of the defendant. In the court below, the judgment was against the plaintiffs, from which they appealed.

The right of the insolvent is no longer in contest; but the transfer of property from him to the defendant is attacked as illegal and fraudulent. The act of sale, under which the latter claims, is a deed sous seing prive, bearing date of the 18th September, 1822; and the cessio bonorum of the insolvent, the vendor, took place on the 12th of June, 1823.

To destroy the validity of this sale, the appellants rely on the 228th Art. of the old Code. found at p. 236; and also on a principle recognised by writers on civil law, that private acts have no date against third persons.

Eastern Dis'ct

March 1827.

The verity of the date of the private instrument in the present case, is established by testimonial proof; and the legal effects of such instruments, when accomplished by actual delivery to, and possession of the vendor, on the rights and claims of third persons—have been settled in two cases, lately adjudged in this court.—See the case of Doubrere vs. Syndics of Grillier. 2 Mart. N.S. p. 171; and that of Martinez vs. Layton & Co. 4 N. S. p. 368. In the first of these cases, the contest was between the syndics, and the plaintiff who had been seized as a slave belonging to the estate of the insolvent, and who instituted the suit for purpose of being restored to the state and standing of a freeman, which he had enjoyed by virtue of a contract with his late master, made and rendered by acts under private signature alone, which had not been recorded in the office of a notary public.

After much deliberation, and strict examination of the best commentaries on the article of the Code Napoleon, which relate to the effects of acts sous seing prive, on the right of third persons, and which are in part similar in their provisions to several of the articles in our old code on the same subject; the court decided in favour of the liberty of the plaintiff, though supported only by private contract. That decision was based principally on the ground of the actual possession and enjoyment of freedom by him, and proof of payment of the price for which he obtained it; these circumstances having established a date to the contract, and exhibited the whole transaction entirely free from fraud or prejudice to the creditors of the insolvent. The rights of second purchasers or mortgage creditors, were not considered in that case, as the matter in dispute did not require any decision in relation to such rights; but in the subsequent case they were examined, and the construction given to our laws on the subject, was against the claim of a mortgage creditor, who insisted on the nullity of an act sous seing prive, in pursuance of which the vendor took possession of the immoveable property which was sold by it, previous to the enregistering of the mortgage under which the lien was claimed.

In both these cases it is seen that the validity of the deeds under private signature, was mainly supported in consequence of the real delivery of the thing sold to the purchaser, and his actual possession under the private act of sale.

The 228th article of the old Code, invoked in favour of the claims of the syndics, is continued in force by the Lousiana Code, with an addition conforming to the decisions above cited, which gives effect to sales or exchanges of real property from the time of the actual delivery of the thing sold or exchanged.

It does not appear from the evidence of the present case, that actual delivery was ever made of the land to the vendee of the insolvent; we are, therefore of opinion that as it respects the creditors of the latter, the sale being under private signature, and not registered as required by law, must be considered as null and void : and the property intended to be conveyed by it, decreed to be, and make a part of the mass of the insolvent’s estate, &c.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be avoided, reversed and annulled; and it is farther ordered, adjudged and decreed, that the plaintiffs and appellants do recover the land in dispute, as a part of the estate of the insolvent Deflechier: and that the appellee and defendant pay costs in both courts.

Carleton & Lockett for the plaintiffs, Grymes for the defendant.  