
    Fanny Taylor, v. J. P. Freret, Sheriff et al.
    A- furnished and occupied a room in the house in which B. the lessee, resided. A. sold his furniture to B., who did not remove it from the house. Held: the delivery was, in contemplation of law, complete, notwithstanding the furniture remained in the same house.
    APPEAL from the Fifth District Court of New Orleans, Augustin, J.
    
      Price, for plaintiff. Dw'ant & Horrwr, for defendant and appellant.
   Campbell, J,

The defendant, Fonda, having obtained a judgment against James Garland, issued execution thereon, and on the 10th December, 1851, seized a lot of furnitur% in a house in St. John street, as the property of his debtor.

Plaintiff.claiming the property as her own, under an act of sale sous seing privé, from IF. B. Rogers, dated December 5, 1851, enjoined the execution.

The defendant in his answer to the injunction, avers that the property in fact, belongs to his debtor, Garland; that if plaintiff has possession of it, that such possession was acquired by the fraudulent and simulated contrivances of herself, her pretended vendor and Garland, to conceal it from the pursuit of his creditors, and that the transfer relied on is a simulation, and gives neither title or possession.

It is clearly shown that Garland purchased the furniture in 1851, but at what precise time does not appear. It is further shown that after the purchase, he placed it in the house in which it was seized, where his kept mistress then resided, and which house was leased by Rogers, who also resided there. The house appears to have been a brothel, and Fanny Taylor, who seems to have been'the proprietor of it since December 1, 1851, then resided there.

Plaintiff claims title as has been seen, from Rogers, who she alleges purchased from Garland, and in support of her pretension, has exhibited two acts of sale, under private signature, one from Garland to Rogers, dated May 1st 1851; the other from Rogers to herself, dated December 5, 1851.

The chief question for our consideration is, “ was the sale from Garland to Rogers, real ?” The record contains no positive evidence of the payment of the price, except the acknowledgment of its receipt in the act of sale; yet facts are proven, which, notwithstanding the suspicious circumstances that surround these transactions, bring us to the conclusion that the sale was real, and made at the time of its date.-

J. B. Hubbard, a dealer in furniture, testifies that in May or June, 1851, Rogers offered to sell him this furniture. James H. Jones, of the firm of Flint & Jones, from whom Garland purchased the furniture, deposes that sometime before Garland failed, Rogers called on him and asked if the firm had any claims on the furniture which they had sold to Garland.

R. K. Bonham, who lived with Rogers, states that ho saw the bill of sale from Garland to Rogers, ho thinks in June or July, 1851, but knows that at that time Rogers had possession of the keys and paid the rent of the house in which it was placed.

F. W. Ivens, states that knowing that Rogers had endorsed notes for Garland, he advised him to do so no more, but secure himself, and that shortly after-

wards Rogers exhibited the bill of sale. This was before either Rogers or Garland, went to the north, which was in July.

We are of opinion too, though the furniture remained in the same house after the sale, that a delivery was made, in contemplation of law. Rogers was lessee of the house, and resided in it. Garland and his kept mistress likewise occupied it. After Ga/rland's departure for New York in July, it was occupied hy Smith, the agent of Rogers.

It is in evidence, that the plantiff has been the occupant of the house in St. John street since the 1st December — that a short time before that date, she made large purchases of additional furniture, and that on the 5th of that month, she purchased from Rogers the furniture by him acquired from Garland, and was in possession of it at the time of the seizure complained of.

We concur in the conclusion to which the District Judge arrived, and therefore decree that the judgment by him rendered in favor of the plaintiff, he affirmed with costs in both courts.  