
    No. 1303.
    Mary A. Weil v. The Sheriff of St. Helena, and Brand & Adams.
    Tile action of a creditor of the husband, to annul a judgment of separation of property between the husband and wife, and set aside the sale made by the sheriff on a writ of Jieii facias of the husband’s property to the wife in payment of her judgment, is prescribed by the lapse of one year from the date of the judgment, and sale of the property under it.
    Appeal from the District Court, Parish of St. Helena, Ellis, J.
    
      T. C. W. Ellis, and T. G. Davidson, for plaintiffs and appellees.
    
      McVea & Hunter, for defendants and appellants.
   Ilsley, J.

On the 11th July, 1855, Brand & Adams filed in the District Court of the parish of St. Helena their petition, claiming from Benjamin Weil the sum of fifteen hundred and ninety-four dollars and sixty-one cents, with interest, and at the same time asking that the sale of a certain tract of land, which Weil had sold to Thomas Green Davidson, and which was the only property Weil had to pay their claim, be declared fictitious, fraudulent and simulated, and that it be made subject to the payment of their claim, interest and costs.

On the 31st May, 1858, a final decree was rendered contradictorily with Weil and Davidson, in accordance with the prayer of Brand & Adams’ petition. An appeal from this judgment was brought up to this court, but it was dismissed.

On the 6th of September, 1860, a writ of fieri facias on the judgment of Brand & Adams was issued, and the tract of land which had been sold to Thomas Green Davidson was seized. This fieri facias was enjoined by the plaintiff, Mrs. Weil, who claimed to be the owner of the land seized by virtue of a sheriff’s sale, made on a judgment in her suit against her husband on the áth April, 1857, and actual possession under it. Her judgment against her husband, recognized her claims against him for six hundred and thirty dollars, with mortgage upon the property of defendant, her husband, on three hundred and thirty-three dollars thereof, from the 1st September, 1850, and alike mortgage upon the said property for the balance, from the 1st December, 1854.

The sheriff’s sale to Mrs. Weil, was made during the pending of the revocatory action of Brand & Adams, and unless her lien had a dato anterior to that, on which the petition of Brand & Adams, in their suit agaiust Ben. Weil and Thomas Green Davidson was filed in court, the sheriff’s sale to her was a nullity. See 2 Hen., p. 1325, (c) l 5; and particularly Cautereau v. Lacaze, 9 A. 257; also, Denton v. Woods, 19 A. 357.

In this injunction suit, Brand & Adams attacked Mrs. Weil's judgment against her husband as fraudulent'and collusive, and averred that the sale under it wasa nullity; and it would therefore have devolved upon her to prove its correctness. 1 Hen. Dig. 588, and authorities. But she has interposed in this court her plea of one year’s prescription against the plaintiffs’ demand in revocation. Art. , C. C.

The judgment of Brand & Adams, was rendered on the 31st May, 1858, and appeal in this court was dismissed on the 8th April, 1859, and their answer to the injunction suit, setting up the nullity of Mrs. Weil’s judgment and sale under it, was filed in court more than a year after they had obtained their judgment.

It is clear that a direct action by Brand & Adams, to annul the judgin' ”t of separation in favor of Mrs. Weil, and the sheriff’s sale to her made under it was prescribed; and that the defendants in injunction are not in the position to enable them to avail themselves of the rule quce temporada sunt ad agendum; sunt perpetua ad excipiendum, as held in 16 La. 92, and 8 Rob. 8.

The plea of prescription must prevail.

It is, therefore ordered, adjudged and decreed, that the judgment, of the District Oourt be and the same is hereby affirmed, at the costs of the ajjpellants.  