
    No. 1374.
    Pierre Lahitte vs. A. G. Frere, Sheriff, et als.
    1. In case an attached debtor makes a sale of personal goods and property, however circumstantially it is executed, the court will, at the instance of a complaining creditor, examine all the facts and surrounding circumstances and therefrom determine the reality and bona fides of the contract.
    2. When an individual of limited means, engaged in the pursuit of a different kind of business in same vicinity, without any apparent inducement thereto, on the spur of the moment, purchases for a lump sum a small stock of groceries, etc., without any payment in cash, or change of possession, he must bo held and treated as a simulated vendee, or party interposed to take title for the benefit of another, unless the transaction is satisfactorily explained.
    8. Since the passage of Act 16 of 1886, amending Code of Practice, Article 398, the seizing creditor may, in answer to a third opposition alleging ownership of personal property seized, aver and prove the title fraudulent, and the court shall try and decide the issue thus made. In such case a resort to the revocatory action is unnecessary.
    PPBAL fi’om the Nineteenth District Court, Parish of St. Mary. Allen, J.
    
    
      Winchester & Briant for Plaintiff and Appellant:
    When a judgment creditor seizes property as belonging to his judgment debtor, but the title to which stands in the name of another, he assumes the burden of showing simulation. 25 An. Ill, Pierce vs. Clark.
    A possessor of property is not bound to prove the verity of the sale attacked for simulation; the burden of proof is on the party attacking. 21 An. 617, Sellers vs. Sellers.
    
      A sale made to one, not a creditor, for a price in cash, though inadequate to the t value of the property conveyed, can not be annulled at the instance of the creditors of the vendor, who was insolvent at the time, to the knowledge of the purchaser, on the charge of simulation. 40 An. 327, Poehelu vs. Catonnet.
    Where a sale of goods and merchandise is real andnot simulated, and delivery has been made, a creditor of the seller must attack and annul the sale as in fraud of his rights, before he seizes the goods to satisfy his judgment against the seller. 85 An. 836, Mayors vs. Delmis, Sheriff, et al.; R. O. C. 2478.
    Where the title, possession and control of the claimant have all been perfect and complete on their face, it has never been held in any well considered case that the transaction could be treated as such a pure simulation as to maintain a direct seizure. 33 An. 1031, Willis vs. Sheriff, 6 S. R. 732, Cochrane vs. Gibcrt.
    Fraud is never presumed, but must be proved with legal certainty. 18 An. 123» Bridgeford & Co. vs. Simonds. It. C. C. 1848.
    Good faith in contracts is always presumed. The onus of proof is on him who alleges bad faith. 24 An. 299, Succession of Navarro.
    If a sheriff makes a seizure of property after he has been informed that the title is not in the debtor, but in some third person, he is bound in solido with the seizing creditor to indemnify such third person in damages. 15 An. 491; Atkinson vs. Atkinson, 6 S. It. 538; Macias vs. Loris, Sheriff, et al., 41 An.; 4 R. 39; 29 An. 214; 1 It. 140; 34 An. 58; Taylor’s Digest, 595, 596, 597.
    Indemnity bend neither lessens nor adds anything to the sheriff’s obligations or duties, nor will it justify him in making an illegal seizure. 12 An. 174, James vs. Thompson.
    Where the facts of a case present a double aspect, one consistent with fair dealing and the other involving dishonesty of purpose, the court, unless the scales decidedly preponderate for the latter, will strike the balance in favor of honesty and innocence. 7 An. 197, Greenwood vs. Lowe.
    The mere fact that one continues to live with her children on a place after selling it to them, is not a badge of simulation. 2 An. 912, Lindeman vs. Theobalds.
    A joint possession is the possession of the one holding title. 13 An. 155, Haile vs. Brewster.
    If vendor and vendee both live in the house sold, possession follows title. 3 X. S. 337; 19 L. 349; 1R. 41; 11 R. 533; 6 An. 710.
    Where a husband living with his wife in a house belonging to her, and attending with her to a retail shop kept therein, sells the contents of the shop to her, it will be a sufficient delivery. 5 R. 494, Larochette vs. Husband.
    If tlievendor remain in possession of slaves sold, as the vendee’s overseer, their contract of this effect being registered before a parish judge, the vendor’s possession is the vendee’s, and a legal delivery is effected. 5 M. 450, Highlander vs. Fluke.
    Possession follows title. So where by the tutor’s act the title to slaves is conveyed • to his minors, the slaves are legally in their possession, though they actually remain with him. 5 An. 489, Hopkins vs. Buck.
    Where furniture in a house is purchased by the lessee and resident.thereof, from a vendor also residing therein, the delivery is sufficient. 9 An. 437, Taylor vs. Freret.
    When the vendor, who was captain of the boat sold, engaged his services as such, to the vendee, the presumption of simulation does not arise. 16. An. 6, Kngland vs. Commercial Insurance Company.
    Where a creditor attacks a sale made in the name of a third person, for the occult benefit of his debtor, the burden is upon him. Where the evidence affirmatively supporting the transaction has not been rebutted, the sale will not be disturbed. 84 An. 310, Chaff & Sons vs. Lisso.
    Although simulation is difficult of conclusive or affirmative proof, yet it surely requires, in order to shift the burden of proof upon the defendant, that the circumstances relied upon to establish the fraud should be so strong as to create highly reasonable doubts or suspicions as to the good faith and honesty'of the transaction which is sought to be set aside. 32 An. 670; Summers &Brannin vs. Clarke.
    The tradition or delivery of movable effects takes place either by their real tradition, or by the delivei’y of the keys of the buildings in which they are kept; or even by the bare consent of the parties, if the things can not be transported at the time of sale, or if the purchaser had them already in his possession under another title. R. C. C. 2478.
    When the jury has erred or failed to do justice, the Supreme Court, in the exercise of its jurisdiction, can and docs correct the verdict of the jury, and proceed to render such a judgment as will meet the ends of justice. 13 L. 110; 34 An. 1107; 33 An. 397; 29 An. 223; 39 An. 800; 2d Sedgwick on Damages 661, and-eases there cited; 6R. 457.
    
      Foster & Mentz for Defendants and Appellees:
    Sales of movable property are void as to creditors unless delivery has been made C. C., Art. 2247. The effect of this contract “ is strictly confined to the parties until actual delivery of the object.” C. O., Art. 1922.
    A sale omnium bonorum is not in the usual course of business, and when assailed, parties claiming under it must establish its reality. 2 An. 266; 89 An. 879.
    When property sold remains in the possession of the vendor, the presumption of simulation arises, and, as to third persons, the parties to the sale must establish its reality. C. C., Arts. 1921, 2480 ; 2S An. 928; 31 An. 653; 32 An. 1133.
    When the subject matter of a negative averment, e. g., that a sale is not real, lies peculiarly within the knowledge of the other party, the averment is taken as true, unless disproved by that party. 1 Green. 79; 13 An. 208; and see 33 An. 1057, and authorities there quoted.
    When the charge of fraudulent simulation is made, and the facts are within the control of the party charged, the burden of proof is upon the party thus charged. 34 An. 847.
    ‘This case is almost identical with that in 23 An. 435, where the court said that such abuse of the equitable writ of injunction should be heavly mulcted.
    The sheriff is protected from the pursuit of the plaintiff in this case, for heprocured the seizing creditor to furnish the indemnity bond required by Act No. 37 of 1882. See Macias vS. Dorio, sheriff, 41 An. 300.
    Act No. 37 of 1882, reenacting Section 3579, R. S.J should be read in connection with Section 3580, R. S.
   The opinion of the court was delivered by

Watkins, J.

The Nicholas Burke Company, Limited, sued out an •attachment against the property of Oscar Angelloz in the parish of Lafourche, where the latter resided and was engaged in business as -a merchant, and immediately afterward — on the 10th of December, 1889 — it caused an alias writ of attachment to be sent to the parish •of St. Mary, and a seizure thereunder to be made of a stock of goods and merchandise in Morgan City, which was under the management of Pierre Angelloz — father of Oscar — as agent up to a date shortly •antecedent to the seizure.

The plaintiff claims to have purchased this stock of goods from ‘Oscar Angelloz, and to have been in the actual possession thereof, accompanied with all the indicia of ownership, anterior to and at the time of the seizure.

The object of this suit is to restrain the sale of these goods by injunction predicated on the plaintiff’s claim of ownership, and he accompanies his claim with a demand for $5000 as damages.

The defence of the attaching creditor company is that plaintiff’s title to the goods is fictitious, fraudulent and simulated, and the result of a fraudulent combination between him and its debtor to defeat recourse upon his property.

The case was tried by a jury, and a verdict and judgment were rendered for the defendant, rejecting plaintiff’s demands and dissolving his injunction; and the latter has appealed.

The facts disclosed by the record appear to be as follows, viz:

Oscar Angelloz, the debtor, resided in the parish of Lafourche, •and was there engaged in business as a merchant, and he also owned ■a small stock of merchandise which was operated and controlled by his father, Pierre Angelloz, in Morgan City, parish of St. Mary. The plaintiff claims to have bought his stock of goods from Pierre, as •agent of Oscar Angelloz, on the 5th day of December, 1889, prior to the seizure thereof on the 10th of that month. The sale was evidenced by a formal authentic act, and it was duly recorded in the conveyance office. The price stated in the act is “ $800 cash in hand paid,” and the property is described as the entire contents, good will, trade and custom of that certain grocery store carried on by the vendor, Angelloz, in Morgan City,” etc.

At the time of this alleged sale the plaintiff was engaged in business in Morgan City as a baker. He was placed in possession of the keys of the building, which was occupied as a store, and retained Pierre Angelloz as his clerk at a salary of $50 per month.

When the sheriff demanded a seizure, the plaintiff notified him of his ownership, exhibited to him his act of sale, and demanded a bond •of indemnity. The seizure was then effected, an inventory and appraisement were made, and the sheriff gave the plaintiff a receipt for the keys of the store.

In 1884 the plaintiff made a cession of his property to his creditors, subsequently obtained a discharge from his debts, and in 1885 he recommenced business as a baker, and at the time of his alleged purchase he had accumulated a small stock by dint of industry and the husbanding of his small earnings, which he valued at $1500. But he has failed to explain the source from which he derived the money with which to purchase the goods, or from which he expected to^ derive the same. He does not claim to have paid the cash, as stated in the act of sale, or to have had that sum of money in possession, or any other resources adequate to make the purchase.

Prior to the date of his purchase plaintiff had nothing more than a casual knowledge of the kind or amount of business Angelloz was doing; nor whether it was profitable or not; nor what was the amount of his daily sales.

As a witness, he was unable to state, even in a general way, the character of the stock Angelloz was carrying at the time of purchase, nor the amount or quality of any particular kind of goods that were in stock. At the time of sale no account of stock was taken. He did not even call upon Angelloz to exhibit to him his bills of purchase or invoices, or to state when the goods were purchased. He admits that he had never been engaged in the grocery business, and that he had no idea of the value of a plow, a pot, a chamber set, or a. looking-glass. Prior to his alleged purchase plaintiff did not even make a personal examination of the goods in order to possess himself of accurate information as to their value. He admits that he was at the store at 8 o’clock in the morning to deliver bread as. usual, and that nothing was said about a sale. That in the evening about 7 o’clock Angelloz mentioned it to him.

In order to give an accurate description of the circumstances surrounding the alleged contract, we have chosen to reproduce a part, of the plaintiff’s cross-examination, viz:

Q. “ Oscar Angelloz was the owner of those goods, wasn’t he?

A. “ I believe he was.

Q,. “ Who sold you those goods?

A. His agent, Pierre Angelloz.

Q,. “ Did you at the time this sale was passed see the power of attorney from Oscar Angelloz to Pierre Angelloz?

A. “ No, sir; I did not ask for it.

Q. “ You were buying this stock of goods from an agent, and didn’t ask him to let you see the power of attorney ?

A. “ Yes, sir: I do that every day.

Q. “ Did you ever see the power of attorney ?

A. “No, sir.

Q,. ‘ ‘ Who fixed the price — you or Angelloz ?

A. “I did.

Q. “ How long did it take you to close the bargain ?

A. “ About two minutes.

Q. “Were you inside the store or outside ?

A. “ Inside.

Q. “ Was there much difficulty or trouble in arriving at the terms?

A. “ No, sir; it was done in two minutes.”

Between the hours of 7 and 8 o’clock the parties went before the notary and passsed the act of sale.

It appears that the creditor of Oscar Angelloz made affidavit and filed the suit on the 4th of December, 1889, in Lafourche, and on the following day the order of attachment was granted, and the seizure therein made.

Contemporaneously therewith the sale of the debtor’s property in Morgan City was made, under the circumstances and after the manner just detailed.

During the interim between that date and the seizure complained of, on the 10th of that month, news of Angelloz’s sale to Lahite was industriously circulated in Morgan City, and most of the business people made acquainted with it.

It is a mooted question, the truth of which is asserted by one party and denied by the other, that Oscar Angelloz telegraphed his father, Pierre, the fact that an attachment had been levied upon his property in Lafourche, and on the day it was made. Our conclusion is, that such information was conveyed and acted upon; and that it exercised an influence over the conduct and actions of the parties, and m planning, devising and consummating this sale for the sole purpose of defeating a seizure under the attachment. Thata sale, as made, should have been consummated so hurriedly is unreasonable, on any other hypothesis. It is quite impossible — and equally unnecessary— to recapitulate any more of the details of the evidence in support of the opinion we entertain without making it too prolix. It will suffice to say that the sale was both simulated and fraudulent, and. conveyed no title to the plaintiff which the creditors of Angelloz were bound to respect. Manifestly plaintiff parted with no value. Since the passage of Act 46 of 1886, amending Oode of Practice, 398, the seizing creditor may, in answer to a third opposition, alleging ownership of personal property seized, “allege and prove the title fraudulent, and the court shall try and decide the issue thus made.” A revocatory action is not necessary in such case.  