Maurin & Co. v. Rouquer

Garland, J. delivered the opinion of the court. The petitioners represent that on the 22d day of November, 1889, they recovered a judgment against Francois Rouquer for $10,000, with interest and costs, that an execution issued on the same, which has been returned nulla bona. That said Rouquer being insolvent, with a view to protect his property from his creditors, and particularly the plaintiffs, had by an authentic act sold and conveyed to his son and co-defendant, Jean B. 0. Rouquer, an emancipated minor, the plantation on which he, Frangois, resided, with the improvements and two slaves. In which sale provision is made for the payment of certain preferred creditors, all of which is illegal, fraudulent and void. That young Rouquer knew at the time of the sale, his father was insolvent, and purchased the property with a view to defraud them. That since the purchase young Rou-quer has paid the other creditors of'his father, but will not pay petitioners, but keeps the property which is liable for this debt. The prayer is, that the sale made on the 16th day of January, 1839, of the land and slaves be annulled as fraudulent, and that the same be returned to the mass of the estate of F. Rouquer and made liable to the payment of his just debts. The defendant, J. B. O. Rouquer, for answer denies any fraud. He says he is not and never was a creditor of his father, that as a purchaser in good faith and for a valuable consideration, he bought the plantation and slaves for $16,000. That in accordance with his contract he has paid various creditors of his father, $10,123, from which sum as a portion of the consideration of the sale, his said father has released him, and he has given up the evidence of those claims ; he names the creditors he has paid and the respective amounts paid to each. The act of sale, dated on the 16th January, 1839, declares that in consideration of $16,000. F. Rouquer sells and delivers to his son the tract of fend mentioned with the farming utensils, [597] &c.; “ tea thousand dollars whereof are to he applied to the payment of debts due by the vendor at such times and on such. terms as the purchaser shall agree upon with the creditors of the vendor,” and the balance to be paid the vendor in various instalments. The vendee is also to furnish the vendor with the necessaries of life until the $10,000 is paid or settled, for which he is to have credit. J. B. O. Rouquer, at the same time sells his father the undivided half of three slaves in part payment of the tract of land, &c. In this act no creditors are named or any specific sums mentioned as due to any one, no creditor signs the act or seems to have known any thing about it, except one who was accidentally in the notary’s office, but took no part in the transaction. On the same day, F. Rouquer also sold and conveyed by public act to his son two slaves, for which he was to pay A. Sompeyrac, tutor, &c., the price for which they had been sold by him to the elder Rouquer, which was unpaid. This price and interest, it was ascertained afterwards, amounted to about $3080. This amount young Rouquer was to have credit for on the price of the land, and it formed a part of the $10,123, hereafter mentioned. To this contract Sompeyrac was no party. After these contracts were made, young Rouquer went to the different creditors of his father, and by payments or assumption of his engagements, obtained from them the notes or other evidence of debts they held, and took them to his father, who, on the 13th day of August, 1839, went again before the notary and passed another act acknowledging the receipt of $10,123, and the vouchers for it, in part payment of the plantation previously sold. In this act the name of each creditor is mentioned together with the sum paid. On the same day young Rouquer gave his father four notes for the balance of the price of the land, to wit: $5877, payable in four annual instal-ments. This act was passed about three months before Maurin & Co., obtained judgment against F. Rouquer on his endorsements for Cortez, Laplace & Co. At the time these acts were passed it was well known that [598] F. Roquer was in embarrassed circumstances. He estimated jn¿ivj(}uai debts at about $10,000, but they turned out to be several thousand dollars more. He had property to the amount of about twenty or twenty-two thousand dollars. ,lf he could get clear , of his endorsements to the plaintiffs for Cortez, La'place & Co., for which suits were afterwards commenced, he would be solvent, if not he was clearly insolvent. The evidence to show that young Rouquer knew his father was insolvent is by no means clear, but it is certain he knew he was much embarrassed. The plaintiffs obtained a judgment against F. Rouquer on the 22d of November, 1839, and it no.t being satisfied they commenced this suit on the 24th of .October, 1840, more than twenty-one months after the sale from Rouquer to his son had been made, and about fifteen months after the latter had paid the creditors of the former and been discharged from so much of the price. The evidence shows the property sold for its full value and that young Rouquer has ever since had the sole management and control of it, though his father lives on the place being old and dependant on his son. There wa,s a mis-trial in the case in November, 1840, after which the plaintiffs amended the'ir petition by leave of the court, and made all the creditors to whom young Rouquer had made payments on account of his father, parties to the suit; alleging they were aware of the insolvency of F. Rouqfier on the 16th January, 1839, and that young Rouquer acted as their agent in making the purchase aforesaid, and that it was a conspiracy among all the parties to obtain an unjust preference over the plaintiffs. They therefore pray these creditors be cited, and copies of the original petition and amendment be served on them ; that the sale be annulled and each of these new defendants be compelled to return the amounts they have received and that they be paid pro rata. The service of this petition was acknowledged by or served on different parties at various dates from November 30th, 1840, to April 2d, 1841. These defendants appeared and answered by a general de [599] nial. They say, they had nothing to do with the sale ; that young Rouquer had settled his father’s debts with them. They ’deny all fraud or intention to obtain any unjust preference and .they, with the original defendants, plead prescription to this suit. On the second trial a good deal of evidence was introduced to show Fran$ois Rouquer was insolvent at the time he executed the act of sale, and as much was received to show he was not insolvent, but only embarrassed. The result of it all is, that including his endorsements in favor of the plaintiffs, there is no doubt he was insolvent; if he should not be obliged to pay those endorsements, then he was solvent. It is in evidence, that at the time the plaintiffs had not commenced a suit against him on his endorsements, but the notes had been protested. Whilst the parties were at the notary’s office for the purpose of passing the act of sale, the elder Rouquer made an estimate of his debts amounting to about ten thousand dollars and it is further shown, that about that time, he had no serious apprehensions that he would suffer by his endorsements for Cortez, Laplace & Co., as he relied on their assurances that their notes endorsed by him would be discharged by them. To rebut this the plaintiff offered evidence to show that at the time of the sale Cortez, Laplace & Co. were notoriously insolvent, and Rouquer could therefore not have had any sufficient reason to believe they would or could pay their notes. To this the defendants objected and the court refused to receive the testimony to which the plaintiffs excepted. The court very probably erred, but it is not material in this case, as we are of opinion the evidence could not affect the judgment which has been given. All the debts of the elder Rouquer paid by his son were established on the trial, and amount to the sum for which the release was given, and no evidence was given to prove he acted as the agent of the creditors. There was a verdict and judgment for the defendants and the plaintiffs appealed. ihe sale would be good ■as to the son, Sie'intention of frau^UdTeredT tors, because ■the contract of •sale was one-p-urchase^made •lue oftinfpro--jcrt)-. Acüonsto brought by11'a complaining creditor, for giving an undue portion^of1 the common*debtor are prescribed by the lapse of one year from sale. When this sale was passed in January, 1839, it is not shown tjlere was any pr¡vjty or agreement between young Rouquer and the creditors, or between the elder Rouquer and those persons. The son was not a creditor of the father and the mere relationship is not evidence of fraud; 9 Martin, 654; 1 Martin, N.S., 535. Thesale must therefore be considered as one made in the ordinary course of business, not to a creditor and therefore good; La. Code, art. 1981; 6 La. Rep., 344; 12 Idem, 266; 16 Idem, 150. The contract would he good as to young Rou- . . , , . . . , . ... quer even if it was the intention oí his lather to defraud his creditors, as the contract was an onerous one and the purchase mac^e f°r value °f the property; La. Code, 1973-74-76; 10 La. Rep., 345, 348. The agreement on the part of ,, r , “ „ . , , . young Rouquer to pay ten thousand dollars oí tho debts owing by his father and his actual discharge of them by payment or novati°n> an<l the giving his notes for the balance of the price, js a -valid consideration for the sale ; 6 La. Rep,, 536. If the plaintiffs have been injured by these payments to, or arrangement with the creditors, they cannot annul the sale on that account; but if any thing is wrong they must call on the ere, ditors themselves. This they seem to have become aware of, after the first attempt at a trial, and then by the amended answer, the former creditors are called into the suit, and the agency of young Rouquer alleged. Supposing it to be as asserted hut not proved, that young Rouquer was the agent of the creditors, we cannot see how the plaintiffs can resist the plea of prescription tendered by the defendants. The article 1982 of the La. Code, with the decisions ^is court in 3 La. Rep., 26: 14 Idem, 321; settle that question. The only ground of nullity in this case, is that an u J & J undue preference has been given to a portion of the creditors of Francois Rouquer. Actions based on that ground alone come under the prescription contained in the article cited, and be brought within a year from the date of the act sought ° J ° to he revoked. The judgment of the District Co'urt is therefore affirmed with costs.