Garritson v. His Creditors

Martin, J, delivered the opinion of the court. The syndic is appellant from a judgment, by which he is ordered to pay-to an intervening party, the proceeds of the sale of a steam-boat, part of the property surrendered by the insolvent. -The judgment is complained of, on the ground that the mortgage under which a privilege is claimed, -was never recorded, and if it had been it could have no effect against third persons, except from the date of the registry. The counsel of the appellee urges, they claim under a bill of sale of the boat, the proceeds of the sale of rvhich are now in the hands of the appellant. The bill of sale appears to have been registered in a court of the state of Tennessee,within the jurisdiction of which the sale was made, and the boat was to remain in that state, by the terms of the contract. The sale is indeed defeasible on the payment of a sum of money. The insolvent was guilty of fraud in taking the boat, in violation of his contract, out of the state of Tennessee, and bringing ber to New-Orleans. .It does not appear to us, that the instrument under which the proceeds of the boat are claimed, had any other object than, to secure the payment of a sum of money; but the parties chose to give to their contract the form of a defeasible sale, and we cannot consider it in any other light. It is true that in an absolute or defeasible sale, the property does not pass from the vendor, with regard to third parties, till tradition takes place. Traditionibus non nudis pactis dominia [554] rerum transferentur. But before tradition the vendee has jus ad rem, though not in re. This right the vendee began to exercise by a suit against the insolvent, before the cession, which was cumulated with the proceedings in the concurso. The plaintiff, if his suit had been suffered to be proceeded in to judgment, must have recovered the boat rem ipsam. The sale by the syndic has changed the remedy, without affecting the right. Since the boat cannot now be recovered, the plaintiff was entitled to what represents her, i. e., the proceeds of the sale, and we do not think the District Court erred in decreeing them to be paid to him. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.