420

FEDERAL REPORTER.

But it is not conceded that there is any implied contract accompanying or growing out of this dedication; that the public will make any particular use of the premises, except when and as it may suit its convenience or the public good; nor that the same shall reved to the donor or his heirs in case of any failure of the public to use the same, or any attempt on the part of the state or Portland to divert the property to some use other than the one intended by the donor. Where the fact of dedication of a street or landing is in dispute, nonuser is evidence, more or less cogent, according to circumstances, against a dedication. But where, as in this case, the dedication is admitted, the evidence of non-user is immaterial. The right to the use, once admitted, is not affected by it. Barclay v. Howell, 6 Pet. 505. Property dedicated to public use does not revert to the donor, unless, it may be, where the execution of the use becomes impossible; and if such property is appropriated to an unauthorized use, a court of equity will compel a specific execution of the trust, by restraining the parties engaged in the unlawful use or by causing the removal of obstructions or hindrances to the lawful one. Barclay v. Howell, 6 Pet. 507. See, also, 2 Dill. Mun. Corp. (3d Ed.) § 653. The bill is clearly without equity; and, in my judgment, the case made by it does not involve a federal question. The demurrer to the bill is sustained, and the same is dismissed.

CLAFLIN and others

'D. LISSO

and others.

(Consolidated Cases.)1

(Circuit Oourt, E. D. Louisiana. March, 1886.)
1.

FRAUDULENT CONVEYANCE LOUISIANA. REVOCATORY ACTION UNDER CIVIL CODE OF

Under the Civil Code of Louisiana the judgment in the revocatory action instituted by creditors to set aside a fraudulent conveyance, if the action be successful, is that the conveyance be avoided as to itseJIects on the complaining creditors, and that all the property or money taken from the original debtor's estate by virtue thereof, or the value of such property, to the amount of the debt, be applied to the payment of the complaining creditors.

2.

SAME-IN EQUITY.

The same rule will be applied in equity in the circuit court of the United States with respect to property in Louisiana, the complaining creditors being citizens of other states.

8.

SAME-WIFE'S LEGAL MORTGAGE.

The lien of a "legal mortgage" in Louisiana to secure a debt due by the husband to the wife affects third persons only from the date of its recordation, and attaches only to property in the parish belonging to the husband. or therein and thereafter acquired by him. When, therefore, after a fraudulent conveyance to the wife by the husba d, she records h"r debt, her lien as mortgagee does not attach to the property theretofore conveyed, which, as be· tween the spouses, belongs to her, and not to him.

1

Reported by .Toseph P. Hornor, Esq., of the Xew Orleans bar.

,4.

CLAFLIN t1. LISSO.

421

B.um-FRAUDULENT CONVEYANCE TO WIFE.

Such fraudulent conveyance being set aside at the suit of complaining creditors, is set aside as to them primarily, and the property thus unmasked. or its proceeds or value. will be applied by preference to their claims. The Bame result would be reached. substantially. on general principles of equity.'

In Chancery. The complainants, citizens of Massachusetts, and New York, filed suits in the state court of Louisiana, which were revocatory in their character, to set aside, inter alia, a conveyance from the defendant J. H. Scheen to his wife, as made in fraud of creditors. The suits were removed by them to the United States circuit court, and proceeded &s to the demands for revocation on the chancery side, where they were consolidated. Under the Louisana Code such suits may be instituted either by judgment creditors or by those creditors not having judgments, who join their debtors as parties with the alleged fraudulent grantee. Civil Code La. 1972. The theory of the decree in such lit suit, as stated in the Code, is that the conveyance, if the action be successful, is set aside as to the complaining creditors, who thus acquire a preferential right to have the property applied to their claims as established. Civil Code, 1982. Counsel for complainants stated that this rule of preference did not exist under the Code Napoleon, but was probably introduced into the Code of Louisiana by Mr. Livingston, who had been an equity lawyer in New York. W. W. Howe, for complainants. W. H. Rogers, for Mrs. Scheen.
-PARDEE, J. On January 22,1883, the following decree was rendered in this case: "* * * Second. That as to the act of conveyance or dation en paiement, recited in the bills of complaint herein made by the defendant .John H. Scheen unto the defendant Nancy A. Bradley, his wife, by act passed before D. H. Hayes. notary, parish of Red Hi ver, Novembpr 23, 1878, and filed for record and recorded in said parish in Conveyance and Mortgage Books the same day, and whereof a certified copy has been filed as an exhibit herein November 26, 1879, and is now annexed hereto as part hereof, be. and the same hereby is, in all things revoked, annulled, anti set aside; and the property therein described, and purporting thereby to be conveyed to said Mrs. Nancy A. Bradley, wife of John H. Scheen, declared to have been the property of said John H. Scheen at the time the bills of complaint herein were filed, to-wit, November 13, 1879; and is hereby subjected to the just claims. demands, and judgments of complainants herein, subject to provisions hereinafter made; which judgments herein against said Julius Lisso and John H. Scheen, in solido, are as follows: H. B. Claflin &: Go. v. Lisso &: Scheen, (No. 8,883 of the docket of this court,) $9.580 40-100, with interest thereon set forth; H. Bernheim &: August v. Lisso &: Scheen, (No. 8,880,) $655.38, with interest as thereon set forth; August. Bernheim & Bauer v. Lisso & Scheen, (No. 8,881,) $2,326.36, with interest as thereon set forth; Olaflin & Thayer v. Lisso & SCheen, (No. 8.882,) $2,298.57, with interest as thereon set forth. And it is further ordered that any mortgage claims which Mrs. Scheen may

IBee note at end of case.