Dyke v. Dyer

Voorhies, J. The appellee moves the dismissal of this appeal on the grounds, 1st, That the amount in controversy does not give jurisdiction to this court; and 2dly, That the appellants have not signed the appeal bond. The record shows that the amount in controversy exceeds the sum of three hundred dollars, and that the appeal bond is signed by the surety. The motion to dismiss must, therefore, be discharged. 11th An. 113, Williams v. Hood, and cases there quoted. This is an injunction suit. The plaintiff, a third person, enjoined the seizure and sale of certain, property levied upon by the Sheriff, by virtue of an execution [702] issued on a judgment in the case of W. H. Nations v. S. Butler and E. P. Jones, Ad’r. The plaintiff had purchased from the seized debtor the property in question, by a private deed, which he caused to be recorded prior to execution. There is no doubt of the reality of this sale, as shown by abundant evidence in the record; but it is contended by the appellants, that their rights accrued before the recordation of the private deed of sale, the vendor being yet in possession of the property sold. The Civil Code provides : “ Art. 2417. The sale of any immovable, or slaves, made under private signature, shall have effect against the creditors of the parties, and against third persons in general, only from the day such sale was registered in the office of a notary and the actual delivery of the things sold took place. But this defect of registering shall not be pleaded between the parties who shall have contracted in such act, their heirs or assigns, who are as effectually bound by a sale made under private signature, as if it were by an authentic act.” There is a conflict between this Article and the 2242d Article, the latter of which gives effect to sales or exchanges of real property and slaves, by instruments made under private signature, against bona fide purchasers and creditors, only from the date of registry in the office of a notary, or from the time of actual delivery. We have, however, already decided that, in this respect, the 2242d Article must yield to the 2417th Article. Lindeman et als. v. Theobalds et als., 2 An. 912; Stephens v. Wellington, 1 An. 72 ; Thompson v. Mylne, 11 R. 349. Such being the law on this point, the sincerity of the sale from Nations to the plaintiff could not protect the latter against the execution of the judgment against the former, had the property been levied upon, or the judgment recorded, prior to the recordation of the private act of sale in the Recorder’s Office. From that moment, the private deed became an authentic instrument, and gave notice to creditors and third persons; and, if the property continued to remain in the possession of ttie vendor, in compliance with peculiar arrangements between the parties, the only legal consequence resulting therefrom, would be a presumption of simulation, which it were incumbent on the vendee to rebut. C. C. 2456, 1915 ; Lindeman et als. v. Theobalds et als., 2 An. 913. But, as we have stated in the outset, the plaintiff has proven the sincerity and good faith of this purchase. The appellants not having, in the mean time, acquired any rights over the property in question, either by having their judgment recorded, so as to acquire a judicial mortgage, or by levying upon the property in time, the verdict of the jury, relieving the plaintiff in this respect, should not be disturbed. The judgment must, however, be amended as regards the allowance of counsel fees. Besides the absence of proof that they have been paid, it is proper to state that there is no law authorizing the plaintiff in injunction to recover from the defendant the amount paid for counsel fees. Vide the case of Bienvenu v. Deblanc, Sh’ff, in the list of unreported cases, in 12th An., from the Opelousas District. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be amended, by striking out the item of fifty dollars, allowed to the plaintiff's by the verdict; and that the judgment so amended be affirmed, with ■costs, 'the appellee paying the costs of appeal.