
    George D. Shadburne et al. v. William Amonett, Executor.
    Donations between married persons, made during the marriage, are revocable at the will of the donor.
    It is better for parties to vindicate their rights of property under their own names, and not under the cover of simulated titles.
    from the District Court of Madison, J. N. T. Richardson, J.
    
      Stacy and Sparrow, and A. Snyder, for plaintiffs.
    
      Stockton and Steele, and J. J. Amonett, for defendants.
   The judgment of the court was pronounced by

Etjstis, C. J.

In June, 1845, an execution was taken out. on a judgment

rendered in the suit of Silas Lillard v. David Stanbrough, and the sheriff seized certain lands in the parish of Madison. The present suit is a third opposition made to the sheriff’s sale, by George D. Shadburne and Sybil Stanbrough, his wife, claiming, as the property of the wife, these lands thus seized, as the property of Stanbrough, the judgment debtor. There was a judgment in the district court, by which the opposition was sustained, and Sybil Stan-bro-ugh, the wife of Shadburne, was adjudged to be the owner of the lands seized, and quieted in her title and possession thereof. This judgment was rendered on the verdict of a jury. The representative of the original plaintiff in execution has appealed.

The petition alleges, that Sybil Stanbrough is the owner of the lands, by virtue of a donation made to her on the 14th of January, 1847, by Robert M. Scott, by authentic act passed before the recorder of the parish of Madison ;• that Robert M. Scott acquired title to the lands,- by purchase at sheriff’s-sale,made on the 1st of August, 1846, under an execution against Stanbrough, issued on a judgment rendered against him in favor of /. C. Garthwaite, in the parish' of Concordia, which judgment was recorded in the parish of Madison, in-1839 ;- that under said donation from Scott, the plaintiffs have been-in possession of the' lands since the date thereof, and that since the sheriff’s sale to Scott, Stanbrough has had no interest in or title to the lands.

The answer charges, that the sale to Scott, and the donation, were mere con-trivances to’ defeat the rights of the creditors of Stanbrough, who is insolvent, were simulated,- and are null and void; that the judgment under which the' sheriff’s sale was made to Scott really belonged to Stanbrough himself, and was1 kept alive and used for his sole benefit; that Stanbrough has always been in-possession of the lands; which remained unchanged by the transfers-on which the suit is based, etc.

A verdict on issues of this kind ought not to be disturbed, except for grave reasons, and on the strongest convictions on the' part of the court of its illegality, and a scrutiny of the evidence adduced on the trial becomes necessary.

It appears by the testimony of Scott, that he bought the lands at the sheriff’s sale for and on account of Shadburne ; that he paid no money for them, gave no security for the price; that he held the lands in his name at the request of Shadburne ; and that the object of Shadburne, in putting the lands in his name, was to avoid the effect of a judgment then existing against him as the surety of on6 Shannon. He made the donation to Mrs. Shadburne, at the instance of her husband. She is the neiee of Stanbrough, the judgment debtor. It results, from this testimony, that, in point of fact, the donation of the lands was from the husband during their marriage, and consequently recoverable at the will of the husband. C. C. 1742.

It is not attempted to infringe, in the slightest degree, on the credit of this witness. It is conceded, that his testimony reveals the truth. There was really no donation, in its proper sense, from Scott, nor any motive or reason for one to Mrs. Shadburne. The purchase at sheriff’s sale, by him, was a mere simulation ; he never considered himself thereby the owner of the land. Itwas in his name, for a particular purpose, which he discloses ; and it is almost a necessary conclusion, that the transfer to the wife, at the instance of the husband, was in furtherance of the original object, to avoid subjecting the lands to seizure under the judgment against Shadburne. Scott never took possession of the lands, nor is any act of ownership by him or Mr. Shadburne shown to have been exercised. It is impossible to consider this donation of the lands as a bond fide act translative of the property to Mrs. Shadburne.

The sheriff’s sale, and the act of donation, are the titlee declared upon in the plaintiff’s petition; none other are mentioned. The claims of Mrs. Shadburne alone, are stated in the petition, and the judgment is asked for her benefit, and is in accordance with the prayer of the petition. The husband is a party to the suit; but he must be considered as a party, for the purpose of assisting his wife, and not as a plaintiff, for he sets forth no title and asks nothing from the court.

It is contended, that Mrs. Shadburne can avail herself of the title of her husband, and that this title is supported by the verdict. We will examine this title, observing, that it is better for parties to vindicate their rights of property under their own names, and in their own persons, and not under the cover of simulated titles. We have, on more than one occasion, discountenanced attempts of this kind, as they embarrass the lawful pursuit of creditors and increase the difficulties of litigation; and as nothing but truth ought to have place in the administration of justice, nothing short of necessity, in the furtherance of justice, would authorize a tribunal to give effect to a simulated title.

We have stated, that neither Scott nor Mrs, Shadburne took possession of the lands. The same is true with regard to Shadburne; and we do not find the original possession of the lands by Stanbrough, as affected by an act of any adverse ownership, or in any respect changed. It is proved, that Stanbrough cultivated a part of the lands in 1848; and it is not proved that they were rated on the tax list in the name of any other than the original owner. Supposing the title of Shadburne to be only in issue, what is its validity, wanting, as it does, the element of possession? The allegations of the defendant are in effect, that Stanbrough himself bought the judgment under which Scott purchased the lands at sheriff’s sale, and it was held in the name of another for the purpose of being used for his, Stanbrough's, benefit in defeating the judgment of Lillard against him, the latter being posterior in date to the former. The main evidence in support of these allegations is composed of the testimony of witnesses taken under commissions, of which, as well as of the documentary .evidence, we have as ample means of judging as the jury had.

The relations between Shadburne and Stanbrough require some notice; not that, of themselves, they would be of any weight one way or the other, but their concurrence with the hypothesis of the defence, rather supports it than otherwise. Shadburne had been, for several years, the family physician of Stanbrough, and had married his neice. In June, 1845, an execution was issuqd on this Lillard judgment against Stanbrough, at whose instance proceedings under it were enjoined on the ground, that he, Stanbrough, had purchased the judgment at sheriff’s sale, made in February, 1844, and that thereby the judgment debt had become extinguished. This identical ground is stated in the plaintiff’s petition,as one of the means for defeating the seizure and sale of the lands in dispute, to which the present opposition is made. And the qnestion is asked, and has not been answered, as to what right or interest the plaintiffs had in attacking the regularity of the defendant’s proceedings in execution, which was a matter exclusively between the creditor and the judgment debtor. If the lands in dispute belonged to the plaintiff, Mrs. Shadburne, her opposition to the seizure of them must prevail; and she can-have no interest in setting aside the proceedings in execution, which can only reach the lands of the judgment debtor, and not hers.

It appears, that Stanbrough, in obtaining his injunction staying proceedings on the Lillard judgment, had not given an injunction bond with security, and on the 21st of November, 1845, an order of court was made requiring him to give security. On his failing to comply with this order, his injunction was dismissed, with ten per cent damages and costs, by judgment of the court rendered on the 28th of the same month, November, 1845. We find, on the 24th of this month, Shadburne addressed a letter to Garthwaite, in New Orleans, proposing to purchase his judgment against Stanbrough, and offering him four hundred dollars for it. On the 10th of January, 1846, Garthwaite wrote to Shadburne, from Newark, New Jersey, referring him to Mr. William Ailing, of New Orleans, who had full authority to close the matter, and to assign the judgment to the purchaser. Early in February of that year, Shadburne presented an open letter from Stanbrough to his commission merchant in New Orleans, requesting him to aid Shadburne in buying a judgment, and that he was referred to Mr. William Ailing for that purpose. On this request, he paid Shadburne four hundred dollars, which he charged to Stanbrough, and the latter repaid him. The transfer of the judgment bears date Newai'k, New Jersey, January 10, 1846, and is filled up in the name of Shadburne, but was received in blank by Mr. Ailing, and was by him delivered to the person receiving it, on his paying the sum of four hundred dollars. A feeble attempt was made to weaken the effect of these facts, by showing that Shadburne had not been paid for several years’ services as the family physician of Stanbrough, and thereby to establish that the four hundred dollars was on that account. The evidence on this point is far from being definite or satisfactory; and we consider, that it is clearly proved that the money of Stanbrough paid for this judgment, and that the purchase was made by Shadburne, for his benefit. This being the case, we find a proper motive for Shadburne's placing the judgment in the names of others, so that it might be used for the original purpose of aiding Stanbrough in defeating the execution on the Lillard judgment, without any interference from his, Shadburne's, creditors.

Having come to these conclusions, on a careful consideration of the evidence, we are bound to give the defendant the benefit of them, and to hold the lands, which are the subject of the present suit, liable to execution as the property of the judgment debtor, David Stanbrough.

The judgment of the district court is therefore reversed, and judgment is rendered against George Shadburne and Sybil Shadburne, his wife; on the opposition to the seizure and sale of the lands seized by the sheriff; with costs in both courts.  