No. 9913.

#### James A. Renshaw vs. Adeline C. Dowty and Husband.

In a suit by a creditor for the nullity of a transfer by his debtor to the latter’s wife, of property, as *a dation en paiement*of her paraphernal funds, on the ground that such transfer is simulated and fraudulent, proof on tho.part of the wife that there was actual consideration, although inadequate, is conclusive against the allegation of simulation. The attack of the transfer as a fraudulent preference over the husband’s creditors is tho revocatory action of our code, and is barred by the prescription of one year.

APPEAL from the Twelfth District Court, Parish of Rapides. *Blaelcmam,*J.

*It. J. Bowmcm*and *Henry Benshaw*for Plaiutiff and Appellaut:

The evidence shows that the claim of the wife does not reach §2600, and the property conveyed is §3060 more than that amount. Contracts between husband and wife are nullities, non-existent, except to restore the amount due the wife.

Where more than half the price is simulated, the contract is simulated, as well as a nullity, because such a contract is prohibited,

In simulations subsequent creditors can attack. 15 Ann. 177. A simulated transfer will not support prescription. 11 Ann.265; lOAmi.20; 8 Ann. 8L, 458 ; lAnn.132.

The prescription of one year pleaded begins only from date of judgment against the debtor, is inapplicable to sale in execution of wife’s judgment. When no debt is due her, it Is • a mere nullity and transfers no title. 6 Ann. 87.

Presumption, in actions from fraud alone, begins only from date of creditor’s judgment. C. C. 1889. One year had not elapsed from date of judgment.

The testimony of married women, in proof a paraphernal claim against husband in a sum exceeding §500, uncorroborated by circumstances, is insufficient to establish the claim. 37 Ann. 857.

Value of property in this case determines jurisdiction. 37 Ann. J86.

*James Andrexos*for Defendant and Appellee:

1. The husband and wife can make a legal contract of sale, or *dation on paiemont*— 1st, whenever the transfer is for the purpose of paying the rights of one of the spouses judicially separated from the other; 2d, whenever the transfer from the husband to the wife has a legitimate cause, such as the replacing of her dotal or other effects by him alienated. This contract may take place whether the apouties be separated in property or not. Voorhies, Ü. O. 2446 ; Rev, U. O. 2421.

2. The wife may, during marriage, petition against the husband for a separation oí property when the disorder of his affairs induces her to believe that his estate may not be sufficient to meet her rights and claims. Voorhies, C.-'OV 2425; Rev.- C. C. 2399.

*6093. A *dation cn paiement*made by the husband to the wife in settlement of her paraphernal rights, if in good faith, is valid, though her judgment of separation against him be null. 30 Ann. 746.

4. A suit to annul a *dation enpaiement*made in execution of a wife’s judgment as collusive, fraudulent and simulated, can be viewed in no other light than a revocatory action. 6 Ann. 87, 494; 11 L. 424; 14 Ann. 106; 30 Ann. 966; 34 Ann. 347.

5. The correctness of a judgment of separation, or the sufficiency of the evidence upon which it was rendered, cannot be inquired into by a creditor of the husband whose claim arose subsequent to its rendition. O. C. 3434 ; 6 Ann. 391; 4 R. 336 ; 24 Ann. 49 ; 22 Ann 49 ; 22 Ann. 619; 10 Ann. 5G4 ; 14 Ann. 49.

6. The husband’s transfer to tbe wife in satisfaction of her paraphernal claims is not subject to the ordinary rules governing the revocatory action. By our settled jurisprudence neither his pecuniary embarrassment or actual insolvency, nor injury to the rights of creditors, present any obstacle to transfers in satisfaction of such claims, when shown to he real and genuine. 8 Ann. 485; 30 Ann. 745; 33 Ann. 536; 34 Ann. 992.

7- Acfcious to annul a wife’s judgment and a transfer thereunder are prescribed in one year from the date of the transfer or *dation cn paiement.*6 Ann. 87; 11 L. 424; 34 Ann. 347; 30 Ann. 966; 14 Ann. 106.

8. He who alleges simulation must establish it, and to do so must disclose an intention to defraud and injury to himself. 18 L. 338; 2 R, 92; L2 Ann. 739; 13 Ann. 474; 30 Ann. 966 ; 22 Ann. 619.

9. The wife may introduce other proof when her judgment against her husband is attacked by the husband’s creditors other than that upon which it is based, and show that his indebtedness is greater than the price stipulated in the *dation en paiement*made to her. 28 Ann. 546.

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.

*610This 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.