
    GREFFIN'S EX'R. vs. LOPEZ.
    APPEAL from the court of the parish and city of New-Orleans.
    The apparent vendee, in a simulated sale, will be decreed to recovery.
    The petition stated, that the plaintiff's testator, finding himself in difficulties, thought proper to place a part of his property out of the reach of certain enemies. who menaced him with unjust law suits and prosecutions: whereupon he determined to provide a friend, who might cover it. He therefore agreed with the defend- ant, to give her a bill of sale of four houses and lots, apparently for the consideration of fourteen thousand dollars, of which eleven thou- sand eight hundred were to be paid down, and two thousand two hundred in one year-that, with a view to remove every appearance or suspicion of fraud and simulation, he should procure eleven thousand eight hundred dollars, and place them in the hands of the defendant, in order that she might pay it to him, in the presence of the notary-that this was accordingly done, and a deed of sale executed, with the only view of covering, by a simulated sale, the premises for the testator, who in reality received no consideration therefor-that the defendant, at the same time, by a private instrument, acknowledged that she had no right to the property sold, and would at any time re-convey it, on request-that the testator, some time after fell sick, and, being attended by the defendant, the private instrument was got out of his, and came into her, hands, some time before his death-that the defendant, at times, pretended to be the true, lawful and absolute owner of the property conveyed, and at and at others admitted that she was only a trustee for it but, finally, declared her determination not to restore it. The petition concluded with a prayer that the notarial deed of sale be declared null and void, and the defendant decreed to account for such part of the rent as she had received.
    
      East'n District.
    July 1817.
    
      The answer denied all the material facts stated in the petition, and averred the notarial deed of sale to be real and not feigned, that the consideration was actually and bona fide paid, out of the defendant's money. It admit- ted that the defendant, by a private instrument, bound herself to re-convey the property, but not till after a repayment of the sum advanced- that the testator finding it inconvenient to refund, returned this private instrument to her, to be cancelled, and she accordingly destroyed it.
    .Although the principal facts in the case, were differently sworn to by the witnesses, produced by the parties, and manifest perjury seemed to have been committed, the evidence preponderated on the side of the plaintiff.
    There was judgment for him in the parish court, and the defendant appealed.
    Moreau, for the defendant.
    The plaintiff's testator could not have been admitted to alledge the simulation of the deed of sale executed by him, in favor of the defendant. The pretended simulation is immoral and illegal, and no one ought to be allowed to alledge his own turpetude. Nemo allegans suam turpitudi-nem est audiendus.
    This is an invariable principle of jurisprudence. 4 Denisart's decisions de jurisprudence 570, verbo turpitude.
    A conventionmay be immoral, in regard to either, or both the parties, ff. 12, 5, 4. If it be immoral in regard to him who receives, the law grants an action for repetition. If you prove evidently before the competent judge, that you gave to him of whom you complain, a sum of money, to be protected from militia duty. he will order him to refund. Code 4, 7, 3. It is meet, that he who has received a sum of money to restore what he had stolen, be compelled to refund, as all the turpitude is on his side. Id. 4. 7. 6. It is meet, that he who in consideration of the restitution of the sheep which he had stolen, has received a sum of money, should restore it as well as the sheep, or their value. Id. 4. 7. 7.
    But whenthe consideration is immoral, in regard to both parties, there is no action of retitution in favor of either. ff. 12, 5, 3. In such 3. In such a case, the condition of him who has received, is better than that of him who claims.
    Admitting that you have given ob turpem cau- sam, and in contempt of the laws of my king- dom, a house to your adversary, it is in vain that you ask that it be restored to you; for both parties, in this case, being in the same predicament, the coadition of the possessor is better than that of the claimant, cum in pari casu, possessoris conditio melior habetur. Code 4, 7, 2.
    Whenever there isturpitude, not only on the side of him who receives, but also on that of him who gives, there is no restitution, although the obligation has been performed, and the sum paid. Code 4, 7, 4.
    If both partiesbe mala fide, neither shall have an action against the other. ff. 4, 3, 36.
    Every disposition, in thisrespect, of the Spa- nish law, is founded on these principles. We allow the proof of the simulation of a contract, even by mere presumptions, whenever its object is to discover the fraud of him who receives. Partida 5, 11, 40.
    Evidence of the simulationof a contract is admitted, where the lender, in order to obtain usurious interest, requires from the borrower a simulated sale, of a property yielding fruits, in property yielding fruits in order to enjoy these, in lieu of interest, without accounting for them. 3 Febrero, Juicios, 3, 2, 4 n. 205-207.
    It is evident that in every case, in which the fraud is only on the side of him who receives a house, under a lease, in order to cover an usurious loan, nothing can be reproached to the debtor, who is compelled, in his distressed condition, to accede to every proposition of the lender. There is then nothing contrary in the disposition of the Spanish law, which admits the borrower or seller to prove the simulation, in order to obtain relief, with the abuve principles of the Roman law.
    But can the same be said, when a convention has no other object than a fraud, meditated against the rights of a third party? Certainly no. For in such case, there is turpitude on both sides: which ought to exclude either party from relief against the other-for neither can alledge the simulation of the contract, without manifes-ing his own turpitude.
    It is undoubtedly for this reason, that after having shewn that the simulation of a contract may be given in evidence, Febrero states that an action is however denied, when the simulation is in fraud of the fisc or of a third party. 3 Cinco Juicios 3. 2 & 4, n. 209.
    
      The connection is evident, between this opinion of Febrero and the principle of the Roman law, which denies an action, whenever both parties share in the turpitude, and directs, that in such a case, the possession of him who holds the property shall prevail over the claim of the other. If the plaintiff’s testator, and the defendant, as the petition alledges, colluded in order to cover the property of the former, and protect it from the claim of the United States, or his creditors-neither can stand in court against the other.
    
      Mazureau, for the plaintiff.
    The defendant’s counsel contends, that he who alledges his own turpitude, ought not to be heard-and consequently, the plaintiff cannot claim the benefit of an act, executed with a view of destroying the rights of others. This mode of reasoning is at once false and immoral. False; because if, as it often may happen, the knowledge of the simulation be confined to the contracting parties, the simulated transaction would have the effect of a real one, plus valet quod agitur, quam quod simulate concipitur. Code 4, 22. The first law óf this title says expressly, in contractibus rei veritas, potius quam scriptura percipi debet: and the second: acta simu-lata, velut not ipse, sed ejus uxor comparave-rit, veritatis substantiam mutare non possunt. Questio itaque facti per judicem vel per presi-dem provincioe examinatur. Such acts are not susceptible of any effect. Colorem habent, says D'Argentre, substantiam vero nullam; nulla quippe conventio initur, nullus contractus agi-tur, sed fingitur. Quod hujusmodi contrac-tus est tamquam corpus sine anima, says, Bal-dus, et dicitur coloratus, depictus, extrinsecus, apparens : intrinsecus nihil habeas. Immoral: because one of the contracting parties, guilty from the very act of contracting, would benefit by the simulation, to the injury of the other, and of third persons.
    Will this court permit the defendant to say : the contract is a fictitious one ; we entered into it, with the view of defrauding the United States, or the plaintiff’s creditors ; but the court must enforce it, to punish the dishonest man, who sought to cover his property, and reward me, who cunningly deceived him, and betrayed the confidence he reposed in me, that I may enrich myself at his expense and that of his creditors? Will not the court, on the contrary, compel her to empty her impure hands? Jure naturae equum est neminem cum alterius damno locupletari. loeupletari.
    
    
      If two persons have entered into a partnership of crimes, if they have agreed to rob on the highway, to coin false money, to sell copper for gold, and to divide the profits resulting therefrom, and one of them possesses himself of the whole spoil, the other will not he aided by a court of justice-the maxim propriam turpidinem allegans non est audiendus will apply. So if a witness has sold his testimony, and claims the stipulated price-so if a judge has pronounced upon a stipulated reward.
    But the case is altogether in a simulated contract. A simulated deed, is not a deed. Instru-mentum simulatum non est instrumentum, says Parexa, et exceptio simulationis nunquam cen-setrua a statuto exclusa, so the action is not denied. Hence, nothing prevents him who asks relief against a simulated act from being heard; no matter whether he have been a party thereto or not-whether the object of it was injurious to third persons.
    Dominguez says, that the only difference which exists between a case in which the party, who claims relief against a simulated contract, was a party thereto, and one in which he was not, is that, in the first case, he ought to be holden to strict proof, while in the other presumptions will suffice. Discursos Jurídicos, 472.
    
      Febrero, speaking of the exceptions which may be opposed to the via executiva, says that simulation is one of them; and concludes that, although the party injured manifest his turpitude and his offence, which lies in making a simulated contract, he may alledge it, because he seeks to avoid his ruin and prevent his accomplice from enriching himself at his expense.
    This author is in perfect accordance with Pa-rexa-for he admits that the plea of simulation may always be opposed, exceptio simulationis nunquam censetur a statuto exclusa. So he is with Dominguez, who holds that the party injured may plead the simulation, even where he was a party to the contract. But, he adds, y lo mismo paede hacer su heredero, ent l qie el contracto no sed en fraude del fisco o de otro tercero, sobre lo qual vease el titulo Code, plus valet quod agitur. quam quod simulate concipi-tur-and the same may be said of the heir.
    Febrero terminates his phrase, “provided, that the contract not in fraud of the fisc, or of a third party. O this see the title of the Code, plus valet quod agitur, &c.”
    Let us inquire into the foundation and appli- cation of this proviso.
    The preceding phrase concludes-perqu tra- ta de evitar su dano, y este de lucrarse in su de-de-trimiento, because he, (the accomplice) seeks to avoid his ruin, and the other to enrich himself at his expence. This refers clearly to the party who alledges the simulation of his own deed, notwithstanding that he thereby manifests his turpitude and offence, aurque manifesta su tor-peza y delita-and the proviso seems only to relate to the heir. There cannot he any dishonest simulation, except that which is committed against third persons, or the fisc. Every other is innocent, and free from turpide or offence. I manifest my turpitude in the only case in which I oppose to my own act a simulation in fraud of a third person. Febrero declaring in clear and precise terms, that in the cases of which he speaks I may avail myself of the plea of simulation, although in doing so, I manifest my own turpitude and offence, must be understood to say, that I may avail myself of that plea, even when the simulation was in fraud of a third party.
    It will be liked whether, admitting that the party may then plead the simulation, the heir has the same right? We must distinguish. Either, after the death of the party, the third party may have his claim against the heir, after he shall have taken possession of the estate, or from the nature of the claim or cause of action death has destroyed the demand. In the first case, I do not think that the distinction made by Febrero be applicable to the heir: for every thing is entire; the fraud is not yet consummated, and neither justice nor morality forbid that the heir should be enabled to satisfy the third party, whose demand continues to exist. In the other case, the fraud is consummated, and justice and morality forbid that the heir should recover, at the expense of a third person, that property which his ancestor removed from his reach by a fraudulent simulation.
    Let us examine what are the circumstances in which a third person, from the nature of his claim, may cease to have a right on the property of his debtor, by the death of the latter.
    A little reflection will convince us, that these are many: one, however, will suffice. An architect undertakes to erect a vast edifice on a given plan, within a certain time. under pain of very heavy damages. In the mean while, he discovers his to have been a rash undertaking. He makes a simulated sale of his property to remove it from the reach of the person he contracted with, who, the edifice being yet unfinished at the expiration of the period fixed, neglects to prosecute the architect, deeming him insolvent. On the death of the latter, leaving for his heir an only daughter, not skilled in architecture, it is clear that she cannot be compelled either to continue the work begun by her father, nor to pay the damage ; for she is not an architect, and her father was not put in mora, nor were any damages awarded against him. It is clear, that in this case the claim is extinguished by the death of the architect. 2 Febrero de escrituras, part. 6, 6:, art 23.
    
    Let us suppose that an individual, having defrauded the fisc, covers his property to avert its pursuit-that having no visible property, he be not prosecuted. It is clear that in this case his heir cannot be prosecuted, and that the claim of the fisc died with its debtor. Partida, 7, 9, 23.
    This is the only manner in which Febrero’s distinction, or rather restriction, can be interpreted. He cites the maxim of the Roman code, plus valet quod agitur, quam quod simulate concipitur-according to which every simulated instrument is null and void.
    If, according to the Spanish jurists, it appeared doubtful whether, even where the simulation is made for the purpose of defrauding creditors, the party may plead it, in order to regain his properly, it would suffice to consult French jurists, equally skilled in the interpretation of the Roman law, and the decisions of the French tribunals.
    Simulation, either in the consent of the parties or in t e tradition of the thing in contracts, which re proficiuntur, constitute a vice which prevents the engagement to take place, so that the party may alledge it as well as any other person. Ferriere, Dict. de droit et de prat. verbo Acte authentique.
    The court of cassation of France, which must be supposed to be composed of enlightened jurists, has always decided this question in the affirmative, whether the suit was instituted by the party or his heir. 2 Sirey, 24, 440. Denever's cases of 1808, 580.
    The court of appeal of Treves, in a case between the parties to a simulated contract, decided that the action of nullity, on a simulated contract, made to the injury of a third party, may be brought by one who was a party thereto -that the simulation of an authentic act may be proved by witnesses-that the party enters into a simulated contract, with the view of in- sisting on the execution of it for his benefit, is guilty of a fraud towards the other. 18 Jurisp. du Code Civ. 152.
    The courtheld that the maxim, allegans pro- priam turpitudinem non est audiendus, is not i~ not applicable to cases of simulated contracts. The suitor who opposed it, contended that testimonial proof of the simulation of the contract was inadmissible. The court said, "the dispositions of the article 1341, of the Code Napoleon, which exclude testimonial proof against of beyond what is contained in acts, are not applicable to simulated coctracts. This principle is in conformity with the ancient jurisprudence, and is confirmed by several judgments of the court of cassation, under the present legislation, and supported by the art. 1353 of the Code Napoleon, which admits testimonial proof in cases of an allegation of fraud ; and by the articles 1109, 1116, 1131 and 1133, which admit it in case of allegations of want of consent, or of a false or illegal consideration-hence it cannot be said that there was an a sent in a simulated. instrucnet-nor that in a simulated contract, made with th intent of defrauding a third per- son there is a consideration, much less a just an lawful consideration. and there would be manifes fault aud i justice in him, who would leave the party with whom he was contracting in the belief that he would never make any use of the simulated contract, and would after claim the execution of it-whence we conclude, that timonial proof of the simulation of the contract ought to be received."
    This decision shews that, in France, where the Roman law, the source and origin of the Spanish and French laws, was generally taught and observed, the question under consideration admitted of no difficulty-and when we consider that the articles 1341, 1108, 1106, 1131 and 1133, of the Code Napoleon, on which this decision is grounded, are the same as the articles 241 of page 311, 9 and 16 page 263, 31 and 33 page 265, of our our Civil Code, may we not conclude that it cannot be said that, in the act under consideration, there has been either an assent or a lawful consideration?
    Farther, the question appears to be decided in another part of our statute book, in which it is declared, that counter letters have their effect between the contracting parties. Code Civ. 305, art. 221. It is clear, that counter letters are never used. except in simulated contracts-ergo the party must have his action to cause the nullity of the contract to be declared, otherwise in what case can a counter letter be of any avail? Let it not be said, that this must be with the distinction in Febrero. The Code has no dstinction, and ubi lex non distinguit, nec nos distinguere debemus.
    
      In civil cases, where there is no express law, the judge is bound to proceed and decide according to equity. To decide equitably, an appeal is to be made to natural law and reason, or received usages, where positive law is silent. Code Cir. 6, art. 21. Have we any precise law on the subject under consideration? None can he produced. It is then to equity, to natural law, to reason, that we are to resort. Equity, nahiral law and reason forbid that the defendant should retain the property of the plaintiff's testator-they do not forbid that a man, who has given a simulated bill of sale of his property, should cause it to be annulled, in order that he may be enabled to pay his creditors, whom he may once have had the intention of defrauding.
    But a simulated sale, made with the view of covering the property sold, is not necessarily fraudulent.
    Judicial proceedings may be just or unjust. They are just where the sums claimed are justly due-they are surely unjust, where chicanery, or the absence of the proof of the payment, may cause a decision contrary to the merits of the case. In the first case, the simulation by which the debtor seeks to render the proceedings vain and useless, by removing his property from the reach of his creditors, is certainly fraudulent. It is certainly otherwise in the second.
    Now, there is not any evidence of the intention of the plaintiff’s testator, in covering his property, except that which results from the petition. Nothing therein shews that his views were dishonest, that he had in view to defraud any of his creditors, and that he meant to resist any, but unjust, prosecutions.
    There cannot he any doubt that the executor of a party to a simulated contract may exercise the action, which the law might refuse to his testator, to have it rescinded.
    If he was only the mandatary of the deceased, he could not; but he acts for the creditors. It is his duty to collect all the debts and effects of his testator to pry them.
   Martin, J.

delivered the opinion of the court, Mathews, J. dissenting. The defendant’s counsel contends, that the present case is not one in which a court of justice is to yield its aid to the plaintiff. Nemo allegans suam-turpitudinem est audiendus-that the right of the plaintiff", admitting that he has any, arose ex turpi causa, ex dolo malo-that her possession ought to be protected: courts of justice always assisting a party to whom an estate has been voluntarily conveyed, in retaining and some times in obtaining it.

A majority of this court is of opinion that, however conducive to the exdirpation of fraud, a decision in favor of the defendant might be, it would be contrary to the principles which have hitherto prevailed, and which they do not deem themselves at libertys to disregard.

The maxims allegans suam turpitadinem non est audiendus-ex dolo molo, ex turpi causá non oritur actio-in pari delicto melior est con-ditio possidentis, appear indeed to have been applied where a plaintiff sought the price or reward stipulated in an illegal or immoral agreement e. g. if any thing be given to a judge to corrupt him, or even to induce him to decide in favor of the giver, even in a good cause: ut male judicetur, ff. 12, 63-ut secundum me in bona causa. Cod. tit. 3-or, in a similar case, to a witness: dic idem in teste, eod. loc. n. 7. In such cases the plaintiff is not allowed an action to recover what he has absolutely given; neither could any thing thus stipulated for and not paid, be recovered; but no where do we find that any thing parted with temporarily, ob turpem causam, is not to be recovered.

In the French tribunals, property avowedly transferred, for the purpose of being kept from the reach of creditors, is allowed to be recovered by judicial process, of the transferee refuses to re-convey See the cases, cited by the plaintiff's counsel, ante 158.

Under the late territory of Orleans, the principal and legal interest was allowed to be recovered on a contract, on which illegal interest had been stipulated-an illegal contract, ex turpi causa. Caisergues vs. Dujarreau, 1 Martin, 7.

Courts of chancery, in England, allow the lender, on an usurious contract, his principal and legal interest, when the borrower brings him before them.

Money paid to obtain a place is allowed to be recovered. Douglass, 471. So the premium in the case of an illegal insurance, before the event on which the suit depends. Tenant vs. Elliott, 1 Bos. & Puller, 3. So the money staked on an illegal wager, before the contingency happens. Lacaussade vs. White, 7 T. R. 535, Cotton vs. Thurland, 5 T. R. 405.

In all these cases, the court lent their aid to the plaintiff, who sought to extricate himself from difficulties in which he found himself, in consequence of his violation of the law-of his having entered into a forbidden contract. We contract. We are unable to discover any distinction between these and the case before us. But the counsel of the defendant further contends, that courts of justice never yield their aid to those who seek to prevent the execution of the law, or. which is the same thing, to prevent the execution of the judgment of a competent tribunal.

The case of Hanway vs. Eve, 3 Cranch, goes as far as any to establish this position. But there again the plaintiff sought to recover that which could never have been obtained, without a violation of an art of congress.

In all the cases we have cited, the plaintiff sought to countervail and violate the law, and had actually violated it. It forbids stipulating for interest above the legal rate-the party who had done so, had violated it, and was relieved. It forbids the purchase of offices and to give or receive money to be appointed or to appoint thereto : in the case cited from Douglas, the plaintiff, having given money to obtain a place, had violated the law; but, having failed to obtain it, was relieved. It forbids illegal wagers and insurances; and in the cases cited from the English term reports, plaintiffs who had paid money on such illegal contracts, broke the law, and were heard in court.

In the present case, the plaintiff sought to Est'n District. avert the consequences of threatened or impending prosecutions, covered his property, and re integra died. His case is perfectly similar to those we have just cited.

We find no instance in which a plaintiff similarly situated was denied relief, except under the common law of England, and the statute of Elizabeth, which declare fraudulent conveyances binding on the parties. But neither the principle of the common law of England, nor the disposition of the statute of Elizabeth, are known to the laws of this state, and we are bound to disregard them.

It is, therefore, ordered, adjudged and decreed, thru the judgment of the parish court be affirmed, with costs.  