Duplessis v. Boutte

Martin, J., delivered the opinion of the court. The plaintiff’ as vendee of D. Degruys, to whom, and his three brothers, a tract of land had been granted, brought this action against Frangois C. Boutté, who set up title to three fourths of this land, as vendee of the other three brothers. Sostheoe Roman, as syndic of the creditors of Jean Baptiste Degruys, who is one of the vendors of Boutté, contested the title of the latter to the share he purchased from the insolvent. The district court admitted the title of Boutté as valid, and from judgment rendered in his favor, the syndic appealed. The only question presented for our decision, is, whether Boutté or the syndic be entitled to the share of the insolvent. The cession took place in 1812, and by a notarial act the insolvent ceded to his creditors all his estate, both real and personal. Nothing was said in the act about the interest which he had in the land, the partition of which is now sought, and it was not placed on the bilan as part of his estate. In 1818, J. B. Degruys sold and conveyed his share in said land to Boutté, by an act passed before a notary public in the city of New-Orleans, the body of which recites, that Degruys had theretofore sold his share in this land by a verbal sale to the said Boutté, who had then (fourteen years before the date of the act) paid the sum of three hundred dollars as the consideration of the sale. The notarial act was never recorded in the parish of St. Martin, in which the [346] land is situated. Boutté relied on the prescriptions of one and ten years, on the ground that the syndic was attempting to set aside the sale of Degruys to him, as being made in fraud of creditors, urging that this could not be successfully done after the lapse of one year. Louisiana .Code, article 1989. The prescription of ten years, cannot be opposed to a claim for a tract of land, when the act of sale under which it is held, has not been recorded in the parish where the land is situated. The title, by which land is held, has no effect as to third persons, where it is notrecorded in the parish where the land is situated, according to the act of 1810. It does not appear to us that the syndic opposes the sale as .that of property belonging to Degruys, and which he has sold with a view to defraud his creditors, but as a sale of property which he had already ceded to them, and to which he had no' longer any right, The prescription of one year, cannot, therefore, avail the appellee in this case ; neither can he successfully oppose the prescription of ten years, because the title under which he claims, has no effect as to third persons, not having been recorded in the parish in which the land is situated, which is required by. an act of the legislature passed in 1810. . We have not inquired whether Boutté can avail himself of the recital in the notarial act, because this would be giving some effect to an act, which we have already said, can have none. It is, .therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed ; and that partition be made of the land in question, so as to give one half thereof to Francois C. Boutté ; one fourth to the plaintiff, and the remaining fourth to S. Roman, syndic of the creditors of J. B. Degruys; the costs of the appeal to be paid by Boutté, and those of the District Court, out of the property to be partaken.