Dabezies v. Barthe

The opinion of the court was delivered by Breaux, J. Plaintiff had attacked two mortgages as simulated. They were executed in the conventional mortgage form -by Bernard Barthe, one in favor of his son for fifteen hundred dollars and the other in favor of his daughter for the sum of thirty-five hundred dollars, and each is dated the 21st day of February, 1899. [782] Plaintiff avers that he has obtained a judgment against the mortgagor, Bernard'Barthe, for the sum of twenty-two hundred and two and 5-100 dollars with five per cent, interest per annumand costs, and that Bernard Barthe, in order to prevent its execution, and to escape from the payment of his judgment made the mortgage attacked and had it recorded, as well as the mortgage for fifteen hundred dollars, xo which we will hereafter refer. He further avers that Barthe, his debtor, has no other property; that these mortgages are simulated and fraudulent and without the least consideration; that in order to execute his judgment as ho desires, it is necessary that these simulated acts of mortgage be erased from the records. Defendant, in the first place, sought to meet plaintiff’s demand by interposing an exception setting out that plaintiff’s petition is vague and indefinite; that this action is premature; that plaintiff has never attempted to execute his judgment against his debtor, Barthe; and that plaintiff should be ordered to elect his action, either revocatory or en declaration de simulation. Before taking up the decision on the merits, we will review the grounds of the exception and decide whether or not the exception was correctly overruled in the District Court. ■ As relates to the first objection in the exception, viz: that plaintiff’s petition is vague and indefinite, we think that the cause of action is stated clearly enough to enable defendant to meet plaintiff’s suit. Nothing in the pleading or in argument shows in what respect the defendant had cause to complain on this score. Defendant’s brief is entirely silent on the subject. We pass to the next ground contained in the exception, viz: that the action is premature and that plaintiff has never sought to execute his judgment, and that, if he had, there is enough property owned by defendant, Bernard Barthe, to satisfy his judgment. In our view, plaintiff is now seeking to lay the foundation for the execution of his judgment. There is nothing premature in this step looking to the enforcement of his judgment. Preliminarily, he may have a mortgage can-celled if it be void and stands in the way of recovering an amount to which he has a right. Instead of a direct seizure under a ft. fa., he may resort to a suit and by it avoid, or seek to avoid, costs and delay and even damages which may grow out of an illegal seizure in case the act attacked is not simulated as he has conceived it to be. The debtor’s property being the [783] common pledge of Ms creditors, a direct action may be brought to remove prejudicial impediments put on the title. While, by the direct action, plaintiff may, also, perhaps, be made to pay for an error in his attack (in the way of costs and other expenses,! the probabilities are that they will not be as large in a suit such as this as in a direct seizure. There can be no possible objection, under the rules of pleading, to the assertion of a right by a direct action instead of by a direct seizure, when the creditor avers that the only, property which the debtor owns is that upon which his mortgage '■■ests and that it is illegally encumbered as before stated. In answer to the ground set up by way of exception (hat plaintiff’s debtor, Bernard Barthe, had enough property to satisfy the debt without the necessity of this action, we can only say that the assessment o f the property for taxes, the amount of insurance on the property, and other testimony relating to the value of the property mortgaged do not sustain the averment to which we have just referred; that is, in substance, that a seizure should have been made and no direct action should have been instituted. The application for an order to compel plaintiff to elect, which is made the third and last ground of exception, is, in our view, equally as untenable. If simulation be not fraudulent, it is because it is not prejudicial to the rights of the creditors. It concerns no one, Hut if it be to the prejudice of any one, then it is fraudulent; and the fact that one alleges tliat a mortgage is a fraudulent simulation, does not, by characterizing it thus, set forth a revocatory, instead of an aclion to have the simulation pronounced. The action is an action en declaration de simulation. We, therefore, conclude that the -exception was properly overruled by the judge of the District Court. After the exception had been overruled, defendants filed ah answer admitting that Bernard Barthe was indebted to plaintiff as alleged, but denying all of plaintiff’s charges of simulation and pleaded the verity of their mortgage.