
    LOPEZ'S HEIRS vs. BERGEL, f. w. c.
    Eastern Dist.
    
      April, 1838.
    APPEAL PllOM THE COURT 01? THE THIRD JUDICIAL DISTRICT POR THE PARISH OP EAST BATON ROUGE, TIIE JUDGE OP THE EIGHTH PRESIDING.
    Tlie right of a creditor to attack a sale as fraudulent, made by his debtor to a third person, depends on his showing he was a creditor, before the date of the act. But a judgment by the creditor against his debtor, is not conclusive upon the vendee of the debtor, unless he was made a party. He has a right to controvert the demand, and avail himself of every defence the original debtor had.
    So, where the vendee of a debtor was sued, he was allowed to plead prescription to the demand of the creditor, on which he had obtained a final judgment against the debtor.
    No creditor can sue, individually, to annul any contract as fraudulent, made before his debt accrued. So, if a note of the common debtor is prescribed, and he promises to pay it, after a sale of his property, his creditor cannot attack the sale as made in fraud of creditors, and sue his vendee.
    The vendee of a debtor, when sued, has a right not only to resist a judgment when offered in evidence against him, to which he was no party, but to insist on the plea of prescription, and the same defence which had been overruled, and to olfer new testimony.
    In a suit by a creditor against the vendee of his debtor, to annul the sale, the judgment against the latter is admissible in evidence only, to prove that such a judgment had been recovered, but the evidence on which it was obtained is inadmissible. The return of nulla bona on the execution, is admissible, to show the inability of the debtor to pay.
    This is an action by the widow and heirs of Manuel Lopez, a judgment creditor of Gregorio Bergel, against Mary Bergel, f. w. c., to annul and set aside a sale to her by their debtor, of a lot of ground in the town of Baton Rouge, as fraudulent and simulated.
    The plaintiffs annexed to their petition, a final judgment, which their ancestor obtained against Gregorio Bergel, in January, 1834, on a note due by him in August, 1826, for five hundred and thirteen dollars, with interest and costs, on which execution issued, and was returned nulla bona.
    
    The plaintiffs allege, that in January, 1S33, the said Bergel, their debtor, made a simulated and fraudulent sale of a lot of ground to the defendant, a free woman of color, for the expressed consideration of two thousand five hundred dollars, which he acknowledges in the act of sale to have received. They expressly allege, that this consideration is simulated, and that in fact no consideration whatever was paid or received, and that said sale was made with a view of defrauding them of their just claims, he, the said Bergel, having no other property out of which to satisfy their demand. They pray for judgment, rescinding and annulling said sale, and that the property be seized and sold to pay their judgment debt, and for two hundred dollars in damages.
    The defendant pleaded a general denial, and averred, that the sale to her was made in good faith, and for a good consideration, being for work and labor, and services rendered^ etc. She denied that the judgment set up in this case by the plaintiffs, could have any force or effect against her, or that there was any sum due from G. Bergel to them, as alleged ; and that they had no capacity to sue as heirs of Manuel Lopez. Finally prescription was pleaded.
    On these pleadings and issues the cause was tried before the court and jury. The case turned mainly on the questions of law, which are stated in the opinion of this court, which follows.
    The jury returned a verdict for the plaintiffs, and from judgment rendered thereon, the defendant appealed.
    
      Jl. N. Ogden, for the plaintiffs.
    1. The plaintiffs obtained a judgment against Gregorio Bergel, for the amount of a note dated 22d August, 1826. The judgment was rendered in February, 1834. An appeal was taken to this court, and the plea of prescription relied on. The judgment was confirmed by this court. See 7 Louisiana Reports, 178. Bergel sold all bis property to a negro woman, formerly his slave, but then kept as a mistress, and when execution issued no property could be found. This action was brought to set aside the sale to the © negro woman, as fraudulent and simulated, and done with the view of defrauding the plaintiffs. See articles of the Louisiana 'Code, 1964, 5, 7. 1971, 2, and 1989.
    2. The jury found a verdict in favor of the plaintiffs ; the court refused to grant a new trial, and the defendant appealed. The fraud is fully established by the evidence on record. The testimony establishes, that the plaintiffs are the widow and heirs of Manuel Lopez.' Montain’s testimony, shows the acknowledgment of Gregorio Bergel, and his promise to pa}7 the note. In the decision referred to, this court decided that the testimony of one witness and corroborative circumstances were sufficient; the debt was, therefore, sufifi-ciently established, without the testimony of Taquino, which was taken on the former trial.
    3. It will be seen that a bill of exceptions was taken to the admission of the record of the former suit against Bergel, on the ground that Taquino’s testimony taken in that suit, was not admissible in this: It did not go to the jury as the only evidence to prove the acknowledgment. Montain’s evidence taken in this suit, was sufficient with the corroborating circumstances. The sale from Bergel to the defendant was a fraudulent sale. She paid no price for the property. By a final decision of this court, Gregorio Bergel was condemned to pay the amount of the note, and his-property always remained a pledge for its payment. This court will not tolerate that by such fraudulent and dishonest practices, a creditor should be deprived of all recourse upon the property of his debtor. The plea of prescription certainly cannot avail the fraudulent purchaser of the property, when it has already been made by the debtor and decided against him.
    
      Elam, for the defendant.
    1. The plaintiffs have not shown themselves entitled to recover any sum that might be due to Manuel Lopez. Their capacity, as widow and heirs were denied, and not legally proved.
    The right °f a creditor to attack a sale as frauda-hU* debtoretoba third person, depends on his showing he was a creditor, before the date of the ment by the'ore-ditor against his debtor is not conclusive upon debtor,1^unless he was made a alright to^on-mand? and avail defence 'the'oi'f ginai debtor had.
    2. No debt was proved against G. Bergel, which can effect the defendant’s rights. The execution ’of the note, the basis of the action, was denied. The signature of the subscribing witness was not proved, himself not produced, nor his absence accounted for. Louisiana Code, article 1971. 1 Martini N1 S., 486.
    3. The recovery of the note, if even due, was barred by the prescription of five years, which was complete before the sale, which is now sought to be set aside, was executed. Prescription was specially pleaded, and no evidence was adduced to show the interruption. Louisiana Code, 3505. 10 Louisiana Reports, Conway vs. Williams.
    4. The sale to the defendant being made when there existed no legal demand against G: Bergel, bad faith and collusion cannot be shown. ■ The admission and promise to pay, made to Montain, is no evidence of the genuineness of the note, nor proof of its execution. At best it was a new obligation, and being made subsequent to the sale sought to be rescinded, it cannot prejudice the defendent’s rights. Louisiana Code, article 1752, JVb. 2.
    5 'j'jjg note 0f the evidence of Taquino, taken in the suit of , 1 7 Lopez vs. G. Bergel, is not admissible in this case ; and the judge erred in not excluding it from the record.
   Bullard,«/.,

-.i •• „ , delivered the opinion of the court.

. . . . , . , The plaintiffs having obtained a judgment against one Bergel, instituted the present action to annul the sale of a house and lot, bv their debtor to the defendant, as in fraud . of their rights.

The defendant, under that article of the Louisiana Code, which authorizes the purchaser in such a case, to controvert the demand of the plaintiff, although liquidated by ajudg-ment, in the same manner that the debtor might have done before the judgment, (1971,) denied the indebtedness of the vendor to the plaintiffs, and alleges that their action against him had been barred by prescription, before the inception of that suit.

So, ■where the Tendee of a debt-ox* was sued, he was allowed to plead prescription to the de- , mand of the creditor, on which he had obtained a final judgment against the debt- or.

No creditor can sue, individually, to annul any contract as fraudulent,made before his debt accrued: So, if a note of the common debtor is prescribed, and he promises to pay it after a sale of his property, his creditor cannot attack the sale as made in fraud of creditors, and sue his vendee.

The vendee of a debtor, when sued,hasaright, not only to resist a judgment, when offered in evidence against him, to whichhe was no party, but to insist on the plea of prescription, and the same de-fence which had been overruled, and to offer new testimony*

In a suit by a creditor against the vendee of his debtor, to annul the sale, the judgmentagainst the latter is ad-missibie in evi-deuce, only to prove that such a judgment had hut the evidence obtained is In! admissible. The bona on the exe-sibie,"’ to^siiow the inability of the debtor to pay.

There was a verdict and judgment for the plaintiffs, and the defendant appealed after a motion for a new trial bad been overruled.

The right of the plaintiffs to attack the sale as fraudulent, depends on their showing that they were creditors of the vendor, before the dale of the act. The judgment recovered against him, is certainly not conclusive upon his vendee, unless the latter was made a party. He has a right to controvert the demand, and to avail himself of every defence which might have been pleaded by the original defendant. In the present case the sale was in January, 1833, and the judgment was not rendered against Bergel, until January, 1834, on a promissory note, it is true, which was due in August, 1826, but which, apparently, had been prescribed by the lapse of five years.

It is contended, that the promise to pay the note, proved in this case, was not made until after the sale to the defend-'anl; and although such promise may be obligatory and upon a sufficient consideration, yet it furnishes no evidence of the existence of a debt prior to the sale ; that if, at a time when Gregorio Bergel was under no legal obligation to pay the note recited in the judgment, he conveyed to the defendant, the plaintiffs have no right to question the sale. This proposition appears to us fully sustained by the text of the code article, 1988. The rule is one which, even under the strong circumstances of the present case, cannot safely be dispensed with.

But it is further urged, that the plea of prescription was set up by Bergel himself, in the original suit, and overruled by this court. The right on the part of the present defendant .to controvert the plaintiff’s demands, authorizes her to insist on the same defence, and to offer new evidence in support of it.

It does not appear to us the judge erred, in permitting the record in the first suit to be given in evidence, to prove simply the fact that sucha judgment had been recovered, but that the testimony of witnesses given in that case was not admissible in this. The return of nulla bona on the execution, was properly admitted to show the inability of the debtor to pay. But we conclude upon the whole, that a new to have been allowed, because the promise to pay after the date of the sale, was not sufficient evidence to show . 7 the indebtedness of Bergel previously thereto, and we are not authorized to presume fraud in a case where it would not avaíl Party alleging it.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be reversed, and the verdict set aside, and it is further ordered, that the case be remanded . for a new trial, the appellee paying the cost of the appeal.  