Gillis v. Dansby

Howell, J. This is a suit to annul a judgment against the defendant, J. D. Dansby, and in favor of his minor children and to set aside a sale of land made under said judgment, on the ground of a fraudulent ■simulation. The defendants excepted that the petition disclosed no cause of action, in this, that it did not allege that either the judgment or sale ■attached operated to the prejudice or injury of plaintiff, and did not allege that the debtor of plaintiff was insolvent. This exception should have been maintained and the action dismissed. An action can only be brought by one having a real and •actual interest which he pursues. C. P. 15. A contract made in bad faith can not be rescinded unless it operate to the injury of the party complaining. R. C. C. 1978. A sale may be fraudulent and simulated and yet not injure the complaining creditor. It may be, so far as the petition discloses, that J. D. Dansby can pay the plaintiff’s claim. The allegation of injury is necessary. It is therefore ordered that the judgment and verdict below be set ■aside, and proceeding to" render such judgment as should have been rendered on the exception of defendants, it is ordered that said exceptions be maintained and the action of plaintiff be dismissed with costs in the lower court, the costs of appeal to be paid by appellees.