Gleises v. McHatton

Buchanan, J. The sale of tbe 17th October, 1857, under which plaintiff claims, appears to be a simulation, as decided by the District Judge. It professes to have been made for the consideration or price of $18,500 cash in hand, paid by the purchaser to the seller. Now, it is proved and admitted that no money whatever was paid. An obligation with a false cause or consideration can have no effect. C. C. 1887. But Article 1894 says, that if the cause or consideration expressed in the contract does not exist, yet the contract is good, if the party can show the existence of a true and sufficient consideration. What is the consideration that the party has shown in this instance ? The assumption of a debt to Alexander Bonneval, secured by mortgage on tbe property mentioned in the sale under consideration, and other property, to-wit: a [561] tract of land on the Bayou St. John, in this parish. To warrant him against the consequences of this assumption, plaintiff ostensibly became the purchaser at Sheriff’s sale of the land on the Bayou St. John, seized under Bonneval's mortgage which had been assigned to plaintiff for a nominal sum of eight thousand dollars; and at private sale of the Mississippi land and slaves, the sale now under consideration for a nominal price of fl8,500, the total amount of the Bonneval debt, as stated by plaintiff, including interest, costs, lawyer’s fees, &c., was $17,436 93. The evidence shows that all this property was thus conveyed in trust for the payment of the indebtedness of Ducayet thus assigned, and with the understanding that it was to be reconvcyed when the debt should bo extinguished. The contract was therefore under the consideration proven not a sale, but (granting that it was followed by delivery,) a pledge. It was a simulated sale, that is to say, it had the appearance, but not the reality of a sale. And the defendants, as was said in Erwin v. The Bank of Kentucky, 5 An. p. 4, have a clear right to maintain their seizure, by showing that simulation. Considered as a pledge of the property, the plaintiff had no right to enjoin its sale under the executions of the defendants. He should, in strictness, have proceeded by way of third opposition, to claim a priority upon its proceeds. But it is not necessary to put the plaintiff out of court upon this technical ground, for we have'evidence in the record that enables us to dispose of his claim, considered as a third opposition of a pledgee. The evidence shows that the liabilities, to secure which the pledge was given, have been extinguished, or at least that they ought to be, funds having- been realised from sales of the pledged property, made by plaintiff, sufficient in amount to cover, and more than cover those liabilities. 1. Plaintiff sold to James Arthur Blanc, on the 27th January, 1858, a portion of the Bayou St. John property, for. $8,461 25 2. He sold to J. L. Tissot, on the 29th April, 1858, the remainder of the said property, for. 6,000 00 3. He sold to Charles M. Simpson, on the 6th February, 1858, the tract of land in Jackson Co. Miss., (Pascagoula,) for. 11,000 00 Total.$25,461 25 The Bonneval debt, assigned to plaintiff, we have seen, was. 17,436 93 Excess, after satisfying plaintiff,. $8,024 32 It is said by the witness Simms, that plaintiff had endorsed for Ducayet, to the extent of $8000. It is not shown that plaintiff has paid any of those endorsements ; on the contrary, it is proved by Hepp, that he refused to pay one of them, $4000, on the plea of usury. But even had plaintiff paid those endorsements, they were no part of the consideration of this sale or pledge, and consequently confer no privilege upon the pledged property. Indeed, the amount of that pledge could not, legally, exceed the amount mentioned in the Act, viz : $18,500. Lastly, supposing the endorsements paid, and they were covered by the pledge, plaintiff has sold for enough to reimburse himself in full. Plaintiff is therefore without any claim, either legal or equitable, upon the six slaves seized under the executions of the defendants. As to the possession of plaintiff under the bond, said to have beeu given in Mississippi for the forthcoming of some slaves, it is irrelevant to this case. In the first place, neither in his petition against Me Hatton, nor in that against Roma562 gusa, does plaintiff set up title to the slaves seized, under his forthcoming bond, nor is that bond so much as mentioned therein. In the next place, there is no such bond, nor the record of any Mississippi suit in evidence, and the witness, Blocker, who testifies that there was such a suit and and such a bond, does not tell us the names of the negroes who were claimed by the present plaintiff in that suit. He says, “ Mr. Gleises afterwards gave bond for four of the slaves. Five slaves bail been seized, but only four were claimed by Gleises. Moses was left over there in Mississippi, and was not claimed by Gleises.” This testimony was taken, like all the rest, in the two injunction suits, which were tried together. Now, in that against Mcl-Iatlon, it is alleged that two slaves named Sam and Octave, had been seized by defendant; and in that against Ro-mag-osa, it is alleged that defendant had caused to be seized four slaves, named Webb, Charles, Silas and Alfred; all of whom, being six in number, are claimed by plaintiff, by virtue of the conveyance from Ducayet, of the 17th October, 1857. There is nothing in the record to show, which of these negroes named, are the negroes bonded by Gleises in Mississippi. It is, therefore, needless to enquire what kind of title or right to the negroes, the Mississippi forthcoming bond may have vested in plaintiff, inasmuch as there is neither allegation nor proof, to support any claim upon that ground. The judgment of the District Court is therefore affirmed, with costs.