
    
      BARBARIN vs. SAUCIER.
    
    Eastern Dis'ct.
    
      January 1817
    
    Appeal from the court of the first district.
    A conveyance alleged to be fraudulent, cannot be tried by seizing the property as belonging to the vendor and setting up the fraud as a defence.
    An action must be bro’t to annul the conveyance.
   Porter, J.

delivered the opinion of the court. The plaintiff states that the defendant who is sheriff of the parish of Plaquemine, has seized a slave belonging to him, to satisfy an execution issued against another person.

The defendant answers that the slave is really the property of the defendant in execution; and that the plaintiff in this suit has, by a collusive and simulated sale, endeavoured to defraud the plaintiff in execution.

The case was submitted to a jury, who found for the defendant, and the court below rendered judgment in conformity therewith; from which the plaintiff appealed.

We are of opinion that the question of fraud’ could not be tried between these parties in the shape in which it was presented in the court below. Admitting the sheriff had power to contest it, which we doubt, but on which we express no opinion, the sale whether fraudulent or not, vested the legal title to the slave in the plaintiff, and until set aside by the action which the law gives to creditors for that purpose, the sheriff had no right to seize it as the property of the vendor. The case can not, in any respect, be distinguished from those of St. Avid & al. vs. Weinprender's Syndics. 9 Mart. 648. and Haw vs. Herriman. 1 N.S. 535.

Smith for the plaintiff, Hennen for the defendant.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be annulled, avoided and reversed. And that the plaintiff do recover possession of the slave sued for, with costs in both courts; reserving, however, to the plaintiff in execution, the right of establishing the fraud in an action to set aside the sale.  