Williams v. Hagan

Martin J. delivered the opinion of the court. The plaintiff states that he attached several slaves, the property of Kimball, his debtor, and that the defendants pretending to be the owners of them, prevailed on the sheriff to surrender them. The petition concludes with a prayer, that the defendants be desired to return them to the sheriff to be proceeded on, on the plaintiff’s attachment. The general issue was pleaded. There was judgment for the defendants, and the plaintiff appealed. • In this court, the appellee’s counsel has endeavoured to shew title to the slaves under Kimball, and has produced a notarial act of sale — that by a bill of sale from the plaintiff to [125] Kimball, the latter had the property of the slaves transferred to him, in the State of Mississippi, having paid one half of the price, and the act contains no suspension of the transfer of the property — that Kimball running off with the slaves and all the rest of his property from that State, cannot affect the right of his vendees — that the evidence shows the latter had no knowledge of this, and acted without fraud — that the slaves were delivered to them, and placed in the possession of the persons in whose hands they were attached. The plaintiff, as to these slaves, is not a third person in the contemplation of the law. That the present is a suit to set aside a sale by Kimball, whods no party to the suit. has ño effect a-fonstmt ¿omFthe date of its registry, A notarial act' On the part of the appellant, it is contended that the ap-pellees acquired no right, as to third persons, by the notarial act of sale, because it was not registered, after the attachment' was actually levied on the slaves. 2 Moreau’s Digest, 303 sec. 5. It is clear the defendants and appellees’can have no title, except that which result from their notarial act, and that does not give any as to third persons, but from the date of its registry. The plaintifi and appellant are such persons who have obtained a lien by attachment, with respect to the act of sale : “ Third persons, with regard to a contract or judgment are all who were not parties to,it.” Civil Code, 3522, n. 32. Finally, the appellee’s counsel says that a vendee must have a reasonable time to register his act of sale; that it was executed ^on the nineteenth of February1, 1829, and the slaves were attached on the twentieth at noon — nothing on the record shews the date of the registry — and the appellees have not in any manner accounted for the delay. There was surely time to have had the act registered, as it was passed in the city in which the register’s office is kept. Whether on a proper case being made out, we could relieve a vendee, will be a proper matter of consideration when sqch a case will be presented to us. [126] It is therefore ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed, and proceeding to give such a judgment, as in our opinion ought to have been rendered below, it is ordered, adjudged and decreed, that tlje defendants surrender the slaves named in the petition, Viz..: Aberdeen, Wiley and Cressey, to the sheriff of the parish of New-Orleans, to be by him dea.lt with according to law, and the process issued by the present plaintiffs against Kimball; the appellees paying costs in this and the court below.