Danjean & Brother v. Blacketer

Cole, J. The motion to dismiss this appeal is overruled for the reasons given in the case of Curtis v. Blacketer, just decided. On the 8th of October, 1856, Burel S. Blacheter, the defendant, purchased of one James M. Trousdale, a certain lot situated in the town of Franklin, parish [596] of St. Mary, with all the buildings and improvements thereon; also, a largo number of horses, buggies, wagon, corn, hay, fodder, blacksmith shop, wheelwright and carriage trimming shop, together with a livery stable situated on the lot, for the price of $6,546 66$, of which amount $2000 was paid cash, and the balance was payable as follows: $1500 on the 1st of March, 1857,; $1523 33$ on the 1st of March, 1858, and $1523$ on the 1st of March, 1859 : for which last three mentioned amounts Blacketer delivered to his vendor his throe promissory notes bearing interest at the rate of eight per cent, per annum from date until paid. The property conveyed was specially hypothecated to Trousdale, the vendor, to secure the payment of the notes, which were identified with the act of sale. On the 2d of February, 1857, Blacketer sold the property to William A. Wilson, the intervenor in the present suit, and executed an act of conveyance for the same at the city of Natchez, Mississippi. Blacketer having absconded, leaving many debts, several of his creditors sued him by attachment, and among others Banjean & Brother instituted the present suit against Blacketer, and attached the property. Wilson intervened, averring that the property is not, and was not at the time it was attached, that of Blacketer, but was and still is his. Plaintiffs, in their answer to the intervention, alleged, that the pretended sale by Blacketer to Wilson was an act of simulation and fraud, and was made to cover up the property of Blacketer, and to defraud his creditors of their legal rights against him. They deny there was any consideration for the sale, and aver that neither money nor anything else was paid by Wilson to Blacketer for the same. They demand of Wilson strict proof of the bona fides of the sale and of the consideration therefor. They pray to have the intervention dismissed and the protended sale annulled. The judgment of the lower court decreed the sale to be simulated and fraudulent, dismissed the intervention, and ordered that the property attached be seized and sold to satisfy the plaintiffs’ judgment. Wilson appealed. It is established by the testimony of Kennedy, that Wilson, by his agent, the witness, Kenned;/, on the eighth of February, 1857, took possession of the property conveyed to him, as aforesaid, on which day he received from Wilson the deed of sale, with instructions to have it recorded, which he caused to bo done in the parish of St. Mary, on February 9th, 1857. That he ceased to be the agent of Blacketer, and commenced to be that of Wilson, from the time he received the letter from Wilson, enclosing the deed from Blacketer; that Wilson assumed the payment of the notes due Trousdale, the vendor of Blacketer, and paid then $800 in cash; and afterwards witness, as agent of Wilson, paid Troiisdale $2250 ; that these payments were made after the attachment had been levied. Even conceding that an actual title had passed from Blacketer to Wilson, accompanied with possession, and that the plaintiffs could not test the validity of the title by attachment or seizure, so far as relates to the immovables sold ; but that a direct action must be brought to avoid the contract as fraudulent, yet, as the answer to the intervention, which set up title to the property, alleged simulation and fraud, and asked the sale to be annulled; as no exception was made to the regularity of the proceedings, and the parties to the suit have examined the questions of fraud and simulation ; we consider it our duty to inquire if the sale were fraudulent, and not to reverse the decision on the ground that the party [597] ought to have instituted the revocatory action, and not to have proceeded to test the title by attachment. The circumstances of this case show the sale to have been fraudulent. Blacketer having committed a criminal offence, absconded from the parish of St. Mary, leaving no other property to meet his liabilities, but that conveyed to Wilson. Kennedy, the witness of the intervenor, testifies that Blacketer had forged the names of some persons to a note of $2300 : “ he left here, did not bid any person good bye, thinks he left in the night, knows that Blacketer, the last time he left here, was pretty largely indebted, and there are several suits against him.” Kennedy testifies, that Blacketer left about the 19th or 20th March, 1857 ; it must, however, have been believed by some, he had departed permanently previous to this time; for the petition of attachment in this case was filed on the 17th February, 1857, accompanied with the affidavit of the truth of the allegations in the petition ; and one of these was that Blacketer had departed permanently from the State. Kennedy also says : that Wilson came to Franklin for the first time in February, 1857, that Wilson returned there with Blacketer on the 17th or 18th of March. As the deed of sale was executed at Natchez on the 2d of February, 1857, the sale must have been made by Blacketer to Wilson before the latter had ever been at Franklin, where the property was situated. So that he bought a lot, stable, horses, and a variety of other property, without ever having seen. them. Besides, he buys all the books ; also, the accounts, assets and credits belonging to the stable, which had accrued after the 7th October, 1856. Such conduct is not in the usual course of business. As Wilson came to Franklin in February, and the attachment was levied on the 17th of the same month, and a copy of the notice of attachment was left in the hands of Kennedy, who resided at the house of Blacketer, it does not seem reasonable to believe that Wilson was ignorant of the embarrassed condition of Blacketer; and therefore, even if he did buy the property to secure his own dobts, it was in fraud of the other creditors. There is no proof that Wilson paid any consideration at the time of the sale. . Kennedy says, that Blacketer was largely indebted to Wilson ; but his knowledge is derived from the two parties to the sale. Their admissions cannot have much weight under the circumstances of this case. Kennedy also says, that all he knows about the consideration of the sale, is what both partios told him. There is not, then, a particle of proof, that Blacketer was indebted to Wilson, or that any consideration was paid for the property, except that, after the attachment had been levied, Wilson, and Kennedy, pretending to be the agent of Wilson, made two payments on the mortgage notes due Trousdale. It should also be noticed, that Kennedy had been in the employ of Blacketer, and was so at the time of the pretended sale. He held the property, in the absence of Blacketer, as his agent; and after the letter of Wilson, he suddenly becomes the agent of the latter, and w'ould not let Blacketer ride a horse out of the stable. Blacketer was an absconding debtor. Wilson must have known that his object in selling the property was to deprive his creditors of recourse upon it. Tho act of sale being fraudulent, the subsequent payments by Wilson cannot cure the defects of his title. [598] They were made after the execution of the attachment, and appear to have been made' solely to bolster up his pretended title. Zacharie v. Buckman, 8 L. 308; 1 M. 240; 11 R. 190; 18 L. 388; C. C. 1963, 1964, 1973. The sale is clearly null. Judgment affirmed, with costs of appeal.