The daily crescent. [volume] ([New Orleans, La.]) 1848-1851, 1849-01-26
" E w ORL E A N s:
9upreme Count of gcutgtHna.


n
sell the usuruct of the property nuity and is not
Covered by the prescription of purchase al
one acting as his friend and agent with the MONEYS OF
Inc nent2 ana or bis benefit similaton to which the
conveyance Is immaterisl purchase Sheriff. sale
OF Tue property OF the judgement debtor by person in
erpoSed with the design that the property shall en re to
the benefit OF the debiors minor child sale in fraud
date Of the Sheriff sale but @ from the 20 im
hecompanlng creditor obtained ud cement against the
heuiof' WheTe case turns upon point emb raced
IN the judgement of the lower and the evidence is
not satisfactory, the case will be remanded.
NJ l.. DAWSON & Co. gs. CATHERINE C. HoLpERT
TuTRIx OF JULIA A. HOLBERr AND DANIEL PuILL1ps
NO loio IN the Supreme Court Appeal from tie Fourth
Instruct Court of Mem Orleans. SLIDELL J'' Petit
ohes aedge that they obtained Judgment 1e40 against
0ummers the property OF Summers sold l84l upon
bert Jdclas that Summers became the purchaser and
gave James aolber as his surety the twelve months
bond that in November, 1s4l Hobert made donation
tr 100s OF house and lot to his minor daughter Julia
eeIVng to himself during his life time the usufTuct of the
property that the donation null from its nature and also
fraudulent and Intellectual against creditors by reason of the
insolvency of Hobert the time that afterwards Hobet
consented to sale of the property an execution
agant him at the suit of anO her creditor and bought il in
by the nterpostIon OF Daniel Phillips The prayer that
The donation and the apparent title OF Phillips be declared
nun and that the property be subjected the payment OF
lips first pleaded the general issue and subsequently the pre-
scnplIou of one Upon the plea prescription the
Tb apsms Co" held fnd
one me donGtoT hte ggos was nuy nasmuch the
departure from the Napoleon Code and by sound
considerations OF public policy. 1t recommended by the
Jusconsus who prepared the Code of 1908 The donation
was nudity being in VIC alton of prohibtory law and
The Count then tn Re
question OF prescription with reference the tteof Phillips
underexecution The suit Of Mailer against oiber Per-
GIraa Phillips did not take possession under the deed
Olpe remained IN possession of the property until his
death, which occurred in 1917 and his widow the utrx of
ineogaores have been Offered by the plaintiffs says that
olen ceased to have any interest in the after the
twelve months bond and that he PAID this bond at its matu
nly that portion of the with which he paid il he
bert who stated the time of handing him money that
he had made the purchase at the request Of the friends the
Ghld IN order to save for her, and not in
ment to pass title the child There are three views in
which this purchase be regarded As mere purchase
and for bis benefit Philips taking the pa Slr" title s
IN h own name but leaving the possession in Hobe and
require 1t: In other words as mere stimulation; 3 As
cry should enue to the benefit OF his child through Phillips
as trustee for her himself furnishing the money, por
purchase by Phillips good faith for the benefit of the mi
nor with moneys furnished, by Hobert, but by the
the prescription Of one year nappcabe The form of the
purpose through the Sheriff so far as Hobert was CON
cerned would sand on the footing though he had
made acomventonal transfer in the ordinary form OF deed
OF sale The case, therefore would be Of stimulation and
under The principles announced in Cammack Us, Watson,
bads and HobgOod rs. Brown Annual 1872 262 Annual
5S3 93( the Art 1859 inappicabe Under the second
divefed but in fraud of his creditors This Transaction
s howeTe De not sH e% the 70 the ss S m one
but nom The time the complaining creditor obtained Judge
supposed prescription has occurred we must determine the
question which has been much discussed by counsel whether
institution Of this suit We have stated that Hoibe be-
bond given to the plaintiffs The defendants Contend that
Judgement creditors OF HOlbet theV had
under the 18th Art C. p to issue against obe
But though the holder Of the bond is thus clothed with one
OF the rights of judgement creditor, cannot therefore
Code speaks Art 1857 caGo whose debts are 1 re
dated bs BY and in AT lSs9 of creditor who
slder the language used in its ordinary sense. We there
upon The plea prescription and this brings Us to the con
slderation OF the third proposition namely whether Phillips
the with moneys furnished not by Hobert but by the
n endS o, ne MINOR mn we fond BRING our minds to
would be m end of the But, upon this point are
further invest alton. Our for dong will be briefly
stated In the inst place we have not The benefit of the
have entertained doubts the b0na tide character of the
transaction since he dd not decide the case upon that
place the retention of possession by Hobert unfa
uIaon C. g 256 il threw the burden upon the defend
ants and called for satisfactory proof of the reality of the
acknowledges that portion of the money pay the twelve
month"; bond executed by him to the Sheriff was furnished
true that was not his money would have been much
more satisfactory If II had been shown from whom he
so also the silence of Phillips the names of the friends
oil the child who furnished him the the money is
suspicious These friends might have been named and then
they could have been called to testify On the other hand
must be acknowledged that Phillips speaks very positively
as to the absence OF collision with iobe Under all the
of this which wolves the whole fort
OF the minor have deemed the safest TO enand
the for trial. believing that the good faith or dis
honesty OF the Transaction can be more cesy asceraued
by further evidence Ii said in argument by the defend.
ants counsel that the plaintiffs not entitled prosecute
this action because they had not obtained judgement
against Hobert before the institution of the sut and did
make his succession a party. The defendants pleaded
exception 10 that effect but went to trial the and
the plea OF prescription Moreover l. by evidence
introduced without objection, that during the penency
this the plaintiffs became parties 10 the probate
ceedlngS III Hobe succession, and recognized
creditors by his II therefore ordered sdudged and
decreed that the judgement of the Court below be reversed
that the plea of prescription be dismissed and that this
he emanded for trial and for further proceedings
cordng TO law, the defendants paying the of this ap
peal" G. w. Homo for plaintiffs and appellants Colens
for defendants and appelees. Z. s. w. |
WA e d.
SITUATION as CLERK in a Mercantile House
assistant in Clerk Office OF Court, wanted by |