¶1The defendants, judgment creditors of Thomas Albritton, having caused to be seized, in execution of their judgment, a negro woman, have been restrained from proceeding further herein by a writ of injunction obtained at the suit of plaintiff, who claims the negro woman as his property. The only issue which can he presented in such a case, is one of fact. Was the slave seized in execution the property of the plaintiff or of the judgment debtor ?
¶2The evidence shows that the slave Lucy was, on the 10th January, 1848, at a probate sale of property belonging to the succession of Ellis Gore, adjudicated to the plaintiff T. P. Simpson. The evidence, however, appears to us to establish conclusively the fact that the plaintiff never pretended to exercise any right of ownership over her, and that Albritton paid for her, and moreover, that, from the day of the sale until she was seized in execution, she was apparently the undisputed property of the judgment debtor.
¶3The District Judge rendered a judgment perpetuating the injunction, on the ground that “ the defendants could not maintain the plea of fraud and simulation, even if fraud and simulation were proved, as they did not become creditors, of Albritton until some years after the adjudication to Simpson, and that they were, therefore, concluded by the provisions of Article 1988 of the Civil Code. This Article of the Code has, in our opinion, no application to cases of pure simulation. Where an apparent ownership of property has in reality no actual existence, no action whatever is necessary to sot aside the simulated ownership. The creditor of the real owner can proceed at once against the property as that of his judgment debtor. See Erwin v. Bank of Kentucky, 5 An. page 1; also 6 An. p. 717.
¶4The fact that the plaintiff acquired his apparent title at a judicial sale, does not preclude the seizing creditor, from showing that the plaintiff had in fact no interest in the purchase, and merely held it for the benefit of their debtor, and we think the evidence establishes this fact, in the case a.t bar.
¶5It is ordered, that the judgment appealed from be reversed; that the injunction be dissolved and set aside, and that the slave Lucy be decreed to be the property of Thomas Albritton, and as such, subject to seizure in the execution issued herein, and that the defendants do have and recover of the plaintiff $75 as damages. It is further ordered, that the plaintiff and appellee pay costs in both court.