Lopez's Heirs v. Bergel

Bullard,«/., -.i •• „ , delivered the opinion of the court. . . . . , . , The plaintiffs having obtained a judgment against one Bergel, instituted the present action to annul the sale of a house and lot, bv their debtor to the defendant, as in fraud . of their rights. The defendant, under that article of the Louisiana Code, which authorizes the purchaser in such a case, to controvert the demand of the plaintiff, although liquidated by ajudg-ment, in the same manner that the debtor might have done before the judgment, (1971,) denied the indebtedness of the vendor to the plaintiffs, and alleges that their action against [201] him had been barred by prescription, before the inception of that suit. So, ■where the Tendee of a debt-ox* was sued, he was allowed to plead prescription to the de- , mand of the creditor, on which he had obtained a final judgment against the debt- or. No creditor can sue, individually, to annul any contract as fraudulent,made before his debt accrued: So, if a note of the common debtor is prescribed, and he promises to pay it after a sale of his property, his creditor cannot attack the sale as made in fraud of creditors, and sue his vendee. The vendee of a debtor, when sued,hasaright, not only to resist a judgment, when offered in evidence against him, to whichhe was no party, but to insist on the plea of prescription, and the same de-fence which had been overruled, and to offer new testimony* In a suit by a creditor against the vendee of his debtor, to annul the sale, the judgmentagainst the latter is ad-missibie in evi-deuce, only to prove that such a judgment had hut the evidence obtained is In! admissible. The bona on the exe-sibie,"’ to^siiow the inability of the debtor to pay. [201] There was a verdict and judgment for the plaintiffs, and the defendant appealed after a motion for a new trial bad been overruled. The right of the plaintiffs to attack the sale as fraudulent, depends on their showing that they were creditors of the vendor, before the dale of the act. The judgment recovered against him, is certainly not conclusive upon his vendee, unless the latter was made a party. He has a right to controvert the demand, and to avail himself of every defence which might have been pleaded by the original defendant. In the present case the sale was in January, 1833, and the judgment was not rendered against Bergel, until January, 1834, on a promissory note, it is true, which was due in August, 1826, but which, apparently, had been prescribed by the lapse of five years. It is contended, that the promise to pay the note, proved in this case, was not made until after the sale to the defend-'anl; and although such promise may be obligatory and upon a sufficient consideration, yet it furnishes no evidence of the existence of a debt prior to the sale ; that if, at a time when Gregorio Bergel was under no legal obligation to pay the note recited in the judgment, he conveyed to the defendant, the plaintiffs have no right to question the sale. This proposition appears to us fully sustained by the text of the code article, 1988. The rule is one which, even under the strong circumstances of the present case, cannot safely be dispensed with. But it is further urged, that the plea of prescription was set up by Bergel himself, in the original suit, and overruled by this court. The right on the part of the present defendant .to controvert the plaintiff’s demands, authorizes her to insist on the same defence, and to offer new evidence in support of it. It does not appear to us the judge erred, in permitting the record in the first suit to be given in evidence, to prove simply the fact that sucha judgment had been recovered, but [202] that the testimony of witnesses given in that case was not admissible in this. The return of nulla bona on the execution, was properly admitted to show the inability of the debtor to pay. But we conclude upon the whole, that a new to have been allowed, because the promise to pay after the date of the sale, was not sufficient evidence to show . 7 the indebtedness of Bergel previously thereto, and we are not authorized to presume fraud in a case where it would not avaíl Party alleging it. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be reversed, and the verdict set aside, and it is further ordered, that the case be remanded . for a new trial, the appellee paying the cost of the appeal.