Renshaw v. Dowty

The opinion of the Court was delivered by Poci-ik, J. Plaintiff’s object is to annul and set aside a dation en paiement made by the defendant husband to his wife as fraudulent and simulated, and as injurious to him as a judgment creditor of tbe husband. ' Tbe defense is a general, denial, an averment that plaintiff was not a creditor of tbe husband at tbe date of tbe transfer, and tbe prescription of one year. Plaintiff appeals from an adverse judgment. Tbe transfer from tbe husband to bis wife was preceded by a judgment of separation of property, condemning him in tbe sum of $5320.60 in favor of bis wife; and tbe property transferred was appraised at $5663. While in bis petition plaintiff charges absolute simulation in tbe proceedings which he attacks, on appeal be concedes that tbe moneyed claim of tbe wife amounted at least to tbe sum of $2583.37. It'follows, under bis own admission, that there was a real and valid consideration to tbe extent of that sum for tbe transfer. Hence the transaction was not a simulation, and that feature of tbe action fails. Brown vs. Brown, 30 Ann. 966. [610] This leaves plaintiff in the attack with his allegation of fraud to the detriment of his rights as a creditor. Conceding arguendo that he was a creditor at the date of the transaction, his action must be characterized as an attack on a real contract, alleged to have been made in fraud of creditors. This is the revocatory action proper, which is barred by the prescription of one year from the date of the attacked transfer. C. C. 1987; Britto vs. Favre, 34 Ann. 347, and authorities therein cited; Powell vs. O’Neil, 24 Ann. 522. The datíon en paienient was made in December, 1883, and plaintiff’s action was brought in January, 1886; it is therefore barred by the prescription of one year. Judgment affirmed.