McCarty v. Splane

<p>Appeal from the District Court, Parish of St. Mary, Voorhies, J.</p> <p>On the trial of the case nisi, 1 contended as I do now, that the sale of Splane's judgment against McGan'Vy could not be treated as a nullity until the nullity was ascertained and determined by a suit brought for that purpose; that by a long series of decisions, this Court had fixed the rule that no sales could be treated collaterally as nullities, except such as were clearly simulated, and referred the District Judge to 4 L. R, 39 ; 11 R. R, 288; 5 L. R, 124; 4 L. R, 838 ; 3 L. R, 448; 8 L. R, 146 ; 9 R. R, 70 ; 14 L. R, 424 ; 3 Ann. R, 640; 2 Ann. R, 912. In the last of the foregoing cases, the Court say: — “ Having failed to establish the continued possession of the vendor after this registered and recorded sale, it was indispensable to the success of the defence set up in this action by the defendants, to prove that averment of simulation by other evidence ; for when there has been a real though fraudulent sale operating to the detriment of creditors, the title and possession of the purchaser cannot be disregarded. The creditor, in such cases, can only reach the property conveyed, by causing the sale to be annulled in a direct revocatory action. It is well settled that the title in such cases cannot be attacked directly commencing with a seizure.” In the case at bar there was a public sale, which became a matter of record, and the defendant, Splane, was bound to know it, even if he had not been specially notified by the Sheriff of the seizure.</p>