¶1delivered the opinion of the court.
¶2The plaintiff, David Weeks, alleges, that the defendants, W. & D. Flower, having obtained a judgment against Rachel O’Conner, caused a fieri facias to issue, and that the sheriff had levied on certain cotton and slaves, which they well knew to be the property and in possession of the plaintiff, He prays a judgment for five thqusand dollars damages, and an injunction.
¶3The defendants deny that the plaintiff was in possession of the property at the time of the seizure, and they allege, that there was a simulated sale from their debtor, Rachel O’Conner, to her brother, the plaintiff, entered into collusively with a view of defrauding them, and that the pretended vendor always retained possession. They pray that the property seized may be declared to be that of Mrs. O’Conner, and subject to their seizure.
¶4The case was tried by a jury, whose verdict was in favor of the defendant, and the plaintiffs appealed.
¶5The plaintiff’s counsel moved the court to strike out all that part of the defendant’s answer, which alleges fraud and want of consideration, and invalidity in the sales from Mrs. O’Conner to Weeks, on the ground that these question» could not be tried in this form, and tested by a seizure in (he first instance. This motion being overruled, he excepted, *385and the case turns principally on the correctness of that ruling of the District Court.
¶6It has been settled by repeated decisions of this court, that when a purchaser is in possession under a conveyance, the question of fraud cannot be inquired into collaterally, commencing with a seizure; but the party complaining must bring a direct revocatory action. 5 Martin, N. S., 361.
¶7We are still satisfied, that the principiéis a correct one; but it will be found, that in all the cases which have turned upon that principle, the purchaser was in possession. If effect were given to a conveyance, alleged to be collusive and simulated, and not accompanied by possession, it would be a clear violation of that provision of the code, which declares, “that the sale of immoveables or slaves, made under private signature, shall have effect against the creditors of the parties, and against third persons in general, only from the day such sale was registered in the office of a notary, and the actual delivery of the things took place.” Louisiana Code, 2417.
¶8The present case differs, in some essential particulars, from any other which has heretofore come before this court. In the first place, the plaintiff sues for vindictive damages, alleging his possession, and that the defendants well knew lii i tit- i • n i that he was the owne.r and possessor. With a view of repelling this action for damages, which is rather one of trespass than a mere opposition and injunction, to be tried summarily . , . ' n-111. . . . , without a jury, the defendants had, in our opinion, a right to allege and show that the pretended vendor was in fact still in possession, and that the contract on which the *• j plaintiff bases his right, was but a simulation, and intended to cover the property from the defendants’ claim. No objection was made to the questions presented by the pleadings, being tried by a jury, and the possession of the plaintiff was necessarily one of the issues submitted, as well as the knowledge on the part of the defendants, that the property did belong to the plaintiff. We are, therefore, of opinion, the court did not err in overruling the motion.
¶9There is a second bill of exceptions 'to the refusal of the judge to reject the same matters of defence, on the ground that there was another suit pending, in which the defendant in this case seeks to avoid the sale from Mrs. O’Conner to Weeks, on the ground of fraud. This second motion to strike oub was. made after the swearing of the jury, and in our opinion came too late: but even if it had been made in proper time, we are not satisfied that the exception ought to' I,ave prevailed. The exception of the litis pendentia, does not aPPear to us apply in a case of this kind. It is a declinatory exception, and in order to avail the party, it must show the pendency of another suit between the same parties, ^or same object, and growing out of the same cause of action, before another court of concurrent jurisdiction. Code of Practice, article 335.
¶10third bill of exceptions was taken to the refusal of the judge to continue the cause on affidavit, after the trial had commenced, on the ground of illness of one of the counsel, and that his colleague had retired from the court, on account . . . . ox having received intelligence of a recent domestic calamity. Such motions are always addressed to the sound legal discretion of the court; but this court has often decided, that after . . . the trial has been gone into, and evidence heard, it is too late to pray for a continuance. 12 Martin's Reports, 635.
¶11On the merits, the cause was tried by a jury, upon the issue joined in the pleadings, and the judgment of the court founded on the verdict, was, that the injunction should be dissolved. Nothing was decided as to the title of any part of the ‘property, except that which had been under seizure. The evidence appears to have satisfied the jury, that the sale from Mrs. O’Conner to Weeks was not real, but simulated, and that the property seized had not been delivered to the plaintiff, and was still liable to be seized in execution, at the, suit of her creditors. It does not appear to us, that justice requires the interference of this court with the verdict.
¶12It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.