
    Emile Birdsale v. Isaac M. Lakey.
    The plaintiff sued the defendant to annul a sale made to him by his father-in-law, about a month before the death of the latter, upon the grounds of the insolvency of the father-in-law at the time of the sale, and that the sale was fraudulent, having been made without consideration. The insolvency of the father-in-law was proved. Held: That the defendant was hound to prove the consideration, and having failed to do so, the sale was null.
    
      APPEAL from the District Court of St. Martin, Voorhies, J.
    
      J. C. Olivier, for plaintiff.
    U. Simon, for defendant.
   The judgment of the court was pronounced by

Eusns, C. J.

This suit is brought by the plaintiff, who is a creditor of the succession of the late David Bell, of the Parish of St. Martin, for the purpose of subjecting to the payment of the judgment obtained on her debt, certain slaves which belonged to said David Bell, and which the petition charges were sold and conveyed to the defendant. It charges, that the sale was made.to defraud the creditors of said David Bell; that no consideration was given for the slaves, and that the said Bell, at the time of the sale, was insolvent, and that the said sale was simulated, the defendant being then the son-in-law of the deceased.

The answer sets up ownership of the slaves in the defendant, avers that he acquired them for a valuable and legal consideration, which he will show if ruled by the court so to do, but denies that the plaintiff has any right to require from him such proof, and, also, all the allegations in the plaintiff’s petition. There was judgment that the plaintiff’s demand be rejected, with costs, and the plaintiff has appealed. As to the form of this judgment, we have had occasion to remark in the cases of Marsh and Compton v. Perry, and Darby v. Miller.

The administrator of Bell’s succession was,made a party to this suit, and it appears that the plaintiff is a creditor by judgment of said succession, for the sum of one thousand four hundred and twenty-four dollars and thirty-one cents, with costs and interest stated in said judgment, bearing date the 7th day of April, 1849. If a fraud has been practised upon the creditors, it is immaterial whether it be by an undue and illegal preference given to the defendant by the transfer of the slaves in the payment of a debt, or whether the sale was a mere simulation, without price, consideration or reality. The result to the defendant, in both cases, is the same.

The act of sale of the slaves from Bell to the defendant purports to have been passed at the Parish of St. Martin, on the 10th of May, 1848. The consideration purports to have been the sum of three thousand dollars to the vendor, paid in ready money, the receipt of which is acknowledged, and acquittance granted. The purchaser dispensed with the production- of a certificate of an hypothecation of the slaves, acknowledging the existence of a single mortgage for the sum of $1500, a debt due by the vendor to his son, Samuel R. Bell. David Bell died previous to the third of June, 1848, so that the act was within a month of the day of his death. Of the insolvency of Bell, at the time of the execution of this act, there can be no question, aqjr more than Of the insolvency of his succession. In January proceeding the sale, Bell removed from his plantation at Bayou Chéne to St. Martinsville. The defendant, his son-inlaw, took possession of, and managed the plantation on Bell’s removal, and his family made it their home.

Ho evidence whatever has been offered, by the defendant, of the consideration of the alleged sale of the slaves under which he claimed to hold them, although the absence of any consideration is charged in the petition, and the defendant’s readiness to establish a just and valuable consideration has been averred in his answer if he should be bound to prove it. The death of Bell must be considered as the time of his declared insolvency, and the act of sale was within a month previous. We think the burthen of proof was upon the defendant to show the reality and bond fides of the sale. Act of 1817, relating to insolvent debtors, section 24. Code, 1975, 1976 et seq.

The attending circumstances of this transaction between Bell and the defendant, force upon us the conviction, that the sale was a mere simulation for the purpose of effecting a fraud. The debt of $1500, secured by a mortgage to his son, is not without its weight in strengthening our convictions. Nor can we believe, from the relations existing between the parties, that the defendant was ignorant of the pecuniary situation of his father-in-law.

It is therefore decreed, that the judgment appealed from be reversed; that the act of the 10th of May, 1848, passed between David, Bell and the defendant, purporting-to contain a sale of slaves mentioned therein, be declared null and void, and of no effect; and that the slaves, Beniamin, Sandy, Dennis, Clañs, a female, and Fanny, a female, with her two children, Rose, a female, and Ben, a boy, be subjected to the plaintiff’s judgment, interest and costs, and that the defendant pay costs in both courts.  