
    Cage, Ex'r vs. Wells, et als. Wells et als, vs. Cage, Ex'r.
    
    
      A. conveyance of record by the laws of Louisiana cannot be'set aside and annulled in an attachment suit against the -properly conveyed or by execution levied on it, or by other collateral proceeding, as may be done by the statutes of Elizabeth, or the act of 1801, but only by direct revocatory action against the vendee.
    T. & J. Wells, citizens of Louisiana, were indebted to Cage a large sum of money, and an attachment bill levied on a race mare, as the property of said Wells’, in the county of Sumner, was returned to the Chancery Court at Gajlatin, at the instance of Cage against said Wells’.
    The Wells’ answered the bill and declared that the property did not belong to them, but that it was conveyed by act of record to their wives.
    A cross bill was filed by Martha & G. Wells, by their next friend, claiming the animal levied on as their property. This bill was answered and proof taken. Cage died during the pendency of the suit and his executors were made parties.
    The following decree was delivered in the Chancery Court:
    
      “Be it remembered that these causes came on to be heard and were heard for final adjudication at the present term of the court, on the 12th day of October, 1846, before the Honorable B. L. Ridley, upon the bills answers, replications, exhibits and proofs in the causes. And the court being satisfied from the proof, that the mare “Reel,” mentioned in the pleadings, at the time of filing said attachment bill, by the said Jesse Cage in his life time, and at the time of levying said attachment, on said mare “Reel,” to wit: “on the 12th day of October, 1843, was not the property of the said Montfort Wells and Thomas J. Wells, but that the same was the property of the said Jan-nett Wells and Martha L. Wells, wives of the said Montfort Wells and Thomas J. Wells, having been conveyed to them bona fide, by the said Montfort Wells and Thomas J. Wells, in the Parish of Rapides, State of Louisiana, by bill of sale, executed on the 12th day of February, one thousand eight hundred and forty three, for a valuable consideration in part payment of separate paraphernal property of their wives, the said Jannett Wells and Martha L. Wells, and converted to their individual use and benefit, and that said mare “Reel” was therefore not subject to said attachment.” And the court being of opinion that said cross bill was proper to have been filed by the said Jannett Wells and Martha L. Wells, to enable them more effectually to make their defence to said attachment bill; It is therefore ordered, adjudged and decreed by the court, that said attachment bill be dismissed, and that the attachment levied upon said mare, “Reel,” be discharged, and that the executors of the said Jesse Cage, pay the cost of these causes, and that execution issue.”
    
      Guild, for complainants.
    All contracts made to delay, hinder or defraud creditors are avoided by the laws of every civilized community. The civil code is better adapted to suppress fraud, and avoid contracts affecting injuriously creditors than our common law, aided by the English and American statutes.
    Article 1972. No contract shall be avoided by this action but such as aro made in fraud of creditors, and such as if carried into execution would have the effect.of defrauding them.
    Article 1979. Every contract shall be deemed to have been made in fraud of creditors, when the obligee knew that the obligor was in insolvent circumstances, and when such contract gives to the obligee, if he be a creditor, any advantage over other creditors of the obligor. 10th L. R. 368. , ■
    By the civil law, if the husband use or appropriate to his private purposes the dotal or extra-dotal property of his wife, she is regarded as a creditor of the husband, and may by an authentic act, untainted with fraud, acquire the title to the husband’s property. But the above principles are applicable to all connubial acts between husband and wife. Now there is no distinct proof showing what the dotal property of the wife or wives were in this case. The proof shows, that the Wells’ have two large plantations, a number of negroes and working hands, and large personal property of every description. Some of the witnesses say that a portion of these lands and property were the dotal property of-the wives, but how much, none of them pretend to say, what they had consumed or appropriated none show, some spoke of mortgages and incumbrances on the estate, but none are shown, others spoke of Mrs.- Wells going security for her husband, and being bound to pay some $4,000., They spoke of the Wells’ about the same time they attempt to convey the perishable property, they convey to their wives all the lands and negroes; not content with this, two executions came into the hands of the Sheriff of Rapides, against the Wells’, one for $4,253 33; on the 4th of February, 1843; on the 23rd March, 1843, they surrender to the Sheriff, as the return of the execution show, all the blooded stock, all the furniture, cattle, sheep, hogs, their carriages and various other things. They make all kinds of advertisements, and on the 9th May, 1843, the Sheriff Sells all these things, worth some $8 or 10,000, to John R. Eiger, in a lump, on 12 months credit for $30, when it is proved by Col. Elliott and Thomas Kirkman, that Reel was at that time at Elliott’s plantation in' Sumner county, Tennessee. The pretended sale by a combination between the Sheriff, Eiger and the Wells’ look place near Alexandria, in Louisiana, on the 9th May, 1S43. This is the foundation of Eiger’s title to this mare Reel, set up in the cross bill. This fraudulent proceeding reflects upon the transaction of the 27th of February, 1S43, between the Wells' and their -wives; it clearly shows the fraudulent intent of each, and taints the whole transaction as fraudulent against creditors. This copy of the pretended sale between husbands and wives took place on the 27th February, when the Sheriff had in his hands three executions some twenty-three days previously. Which executions were afterwards returned, no property found except the sales before spoken of. This fact with the repeated sales by the husbands to the wives show the insolvent condition of the husbands. Their object and intent was to evade and defraud their creditors, and particularly those pressing executions in the hands of the sheriff. Here is every badge of fraud —conveyance as made not between kindred persons, but between husbands and wives — each knowing that their respective husbands were utterly insolvent if this property could be secured to them, covering the whole estate, both real and personal, including all consumable articles — secret trusts existing, and benefits to be derived to each of the husbands out of the property conveyed — no change of possession — four of the brood mares for the last few years were both breeding byKirkman, on shares with the Wells’, in Alabama — Reel if not in Tennessee at the time of sale, in-all probability in Alabama — Kirkman proves that Wells’ sentherto his house, near Florence, (spring of 1843,) where she remained some time, who under the direction of Wells’, sends her to Col. Elliott, who had kept her breeding from May, 1843, to this time, on the account of and for the benefit of Wells’. Their wives not known in Tennessee as pretending to have any interest in her till after the filing of the bill. These facts and circumstances certainly show a very strong intent to defraud the creditors of the Wells’ under the civil law, should be so declared — the wife can only be regarded as the creditor of the husband to the extent of her dotal property appropriated by the husband, and when attacked for fraud, the amount should be clearly shown by proof. Then if the husband is in failing circumstances, the wife the creditor in any act of sale to her, cannot take or enjoy any advantage over others of the obligees of the husband. 8 L. R. 313.
    By our decisions a vendor remaining in possession of property conveyed is 'prima facie evidence of the fraudulent intent. But by civil law, it is fraud per se; a possession of part of the property conveyed, will not draw the possession of the whole when distinct parcels are conveyed. An act of sale or deed cannot be good in part and fraudulent in part. It is proved beyond cavil that five of their brood mares, including the Queen of Trumps, sold by Cage to the Wells’, have never been in the possession or control of their wives — but for the time aforesaid and up to the present time in the exclusive possession and control of the husbands, breeding on shares, with Thomas Kirkman. The continued possession and control of the husbands, show the fraudulent intent of the parties in the act of sale, which taints the deed or act, and being fraudulent in that, it taints the whole with fraud, as our Supreme Court has repeatedly held.
    Article 3243. Sales or exchanges of personal property are void against bona fide purchasers or creditors, unless possession is given before such bonafide purchaser or creditor acquire his right by possession. Civil code.
    The civil code requires the action to avoid the sale to be brought within twelve months after judgment. The remedies pointed out in that code are merely local, not binding on our suitors or courts in Tennessee. Cage under our statute of 1837, files his bill, and attaches this mare found in Tennessee, as the property of the Wells’. They interpose this act of sale: we alledge that it is a fraudulent obstruction, that they have thrown in our way, which under all the circumstances should be disregarded. But if the act of limitation of twelve months, could operate in Tennessee, as it cannot, my answer is, Cage has not yet obtained his judgment, the Chancery Court by act of Assembly has full jurisdiction, and furthermore Cage filed his bill before the twelve months expired — See Story’s Con- , flict of L. 469.
    Eiger in aid of the wives and husbands filed his" cross bill setting up title upon an unlawful fraudulent Sheriff sale, pretending to have purchased this mare Reel on the 9th May, 1843, in Louisiana, when she was in Tennessee, on Col .Elliott’s farm. His bill should have been dismissed with costs, and the Chancellor should have decreed a sale of the mare Reel and colts, the proceeds to be applied to payment of complainant Cage’s debt.
    An assignment to a wife is subject to be attacked for fraud as other sales. 11th L. R. 424, Slidell & B. Dig. 375.
    A payment of one creditor out of the ordinary course of trade by transfer, is void against the other creditors. Benjamin & Slidell, 274.
    Every device, contrivance or machination by which a creditor may have been prejudiced, may form the subject of the revocatory action. 11th L. R. 423, Benjamin & Slidell, 375.
    
    
      White, for complainant.
    The question here is in regard to the validity of the sale made by the Wells’ to their wives, by authentic act on the 27th of February, 1843, of the race mare Reel. This must be decided by the lex loci contractus — See Story’s Conflict, L. 201-3. Was it authorized by the laws of Louisiana, where the contract was made?
    And 1st. In regard to the property of the wife which she has at the time of the marriage, or which she subsequently inherits. It is divided into dowry or dotal, and extra dotal or parapher-nal property. — Civil Code of Louisiana,aAr. 2315. Dotal property is that which the wife brings into the marriage to assist in bearing its expenses, and paraphernal property is that which forms no part of the dowry. And dotal property can alone be constituted by marriage contract. — Ar. 2317-18-19-20. And all property of the wife not declared upon the marriage to be dotal is paraphernal property. — Ar. 2360. The separate administration of this, she has aright to reclaim. — Ar. 2361-2 4. These are, the principal articles of the code governing the property relations between husband and wife, except as it regards community property, the rules governing which will be found in article 2369 et seq.
    
    
      In this case there was no marriage contract, consequently the property of their wives was paraphernal.
    This separate administration of the wife may be reclaimed. 1st. By a judicial separation of property. — Ar. 2399, 2402. 2nd. By payment to the wife for what is due her for her funds received by the husband, or the price of property of hers sold by him — Ar. 2625 — to be made appear by authentic act — Ar. 2402 — and her intention to reclaim and administer her property separately, to be manifested by a notarial or authentic act— Ar. 2364, 2231, 2233.. The first it will be perceived is a forced, and the last a voluntary reclamation of the rights of the wife, to reimburse her for paraphernal funds used by the husband. This contract of sale between husband and wife is authorized by the Code. — Ar. 2421. And to secure the reimbursement to the wife of her paraphernal rights, the law gives her a general mortgage or lien upon all the property of her husband. — Ar. 2367-8.
    2nd. The sale of the 27th of February, 1843, was in strict conformity with the laws of Louisiana, as a dation in payment from husband and wife, in order to replace or reimburse the wives of the vendors, for the paraphernal funds used by them. It was by authentic act which imports full proof between the parties. — Ar. 2231-3 — and is conclusive against creditors and third persons iii general when accompanied by delivery or possession. — Ar. 2242-3. Tradition or delivery of moveable effects takes place, either by their real tradition, or by the delivery of the keys, &c., or even by the bare consent of the parties, if the purchaser had theSi already in his possession under another title. — Ar. 2453.
    The evidence of the witnesses proves conclusively that the race mare Reel, at the time of the sale, was on the plantation, the common property of all the parties and the residence of Montfort Wells and wife, and in the immediate vicinity of that of T. J. Wells and wife. Ar. 2369, declares that every mar-' riage superinduces a communityor partnership of acqets and gains, consequently the possession of Reel and all the other property was as much in the wives at the moment of the sale as thpt of their husbands, and from the sale was in the sole possession of the Mrs. Wells’, both as vetees and owners of the plantation. The settled rule of law in such a case is, that possession follows the title. Sec. 15, Louisiana Rep., 162, Begley vs. Morgan et al., Benj. & Slid. Dig. 287, No 10. BanJe U. S. vs. Lee et als., Peters 101-118.
    The testimony is abundant likewise to prove the fairness of the consideration given for the property and that the same was actually paid.
    With regard to the allegation of fraud charged upon the conveyance to the Mrs. Wells’, to support which there is no foundation in point of fact, it will be seen that by Ar. 1965, of the Code, even a fraudulent sale cannot be attacked collaterally, commencing by attachment or execution as if the property had not been conveyed, but it must be by a direct revocatory action to set asidethe sale. And this has been repeatedly decided by the Supreme Court of Louisiana. — See 5 Martin, Rep. 261, 634; 6 do. 132, 325; 2d Louisiana Rep. 214; do. 479; 5 do. 126, also 3d Volume of Con. Reports, Supreme Court of Lou., 577; and Benj. & Slid. Dig. 275.
    Article in the Code 1993-4-6-9, referred to upon the other side have reference to that sort of action. In addition to this, these sections of the Code never were intended to apply to a conveyance from the husband to the wife to secure her in her paraphernal rights, for which the law gives her as has been before shown, a general mortgage or lien on the husband’s estate.
   Reese, J.,

delivered the opinion of the court.

This is an attachment bill founded upon the acceptance of the defendants, citizens of the Parish of Rapides in the State of Louisiana, of a bill of exchange drawn upon them by one J. Watson for $1000; of which complainant is holder; and a blooded race mare Reel was attached. They state that being indebted to their wives for paraphernal property of said wives, converted by them, they did in 1843, by an authentic act before the proper judicial officer in said Parish, convey the said mare Reel, together with other blooded stock, to their said wives, and they exhibit said authentic act. The Mrs. Wells’, in defence of their title, file their cross bill which was answered, and both cases were consolidated and brought on to hearing together. We have had much discussion before us, founded on various articles of the civil code of Louisiana, as regards the relations of husband and wife, and the mode of invalidating contracts alledged to be fraudulent. For the complainant insists that the authentic act of conveyance of record is fraudulent. This is denied on the other side, and it is insisted, even if it were fraudulent, it cannot by the law of Louisiana be set aside and avoided, in an attachment suit against the property conveyed, or by execution levied upon it, or by collateral procedure, as may be done by the statutes of Elizabeth, or our act of 1801, but only by a direct revocative action against the ven-dee, which is given by Article 1965.

In a system of laws so different from our own, it becomes us to move, at every step, with great caution, lest we fall into error and do injustice. We are satisfied the code means, and has been expounded to mean, that such a contract is valid, unless its invalidity, on the ground of fraud, be judicially declared in the direct revocative action, given by the code to the creditor against the vendee. Being satisfied of this question, and this question being decisive of the case before us, we have withheld ourselves from considering other questions which have been urged upon us, as leading to the same conclusion.

Upon this ground we affirm the decree of His Honor the Chancellor.  