Mossop v. His Creditors

• Decision Date: 01 March 1889
• Docket Number: 10,317
• Court: Louisiana Supreme Court
• Parties: JOHN H. MOSSOP v. HIS CREDITORS

6 So. 134

41 La.Ann. 296

JOHN H. MOSSOP v. HIS CREDITORS

No. 10,317

Supreme Court of Louisiana

March 1, 1889

APPEAL from the Twenty-third District Court, Parish of West Baton Rouge. Talbot, J.

Read &amp Goodale, for Appellee.

Henry C. Miller, for Appellee.

Alex. Hebert, for the Appellant.

OPINION

FENNER J.

The controversy presented for our determination arises in proceedings for the distribution of the proceeds of sale of mortgaged property amongst the mortgage creditors. A junior mortgage creditor, Zuberbier & Behan, attacks a senior debt and mortgage executed in favor of N.W. Pope, Esq. (now deceased and represented by his administrator, C. J. Barrow) as simulated, void, and given without consideration.

The plea of prescription of one year opposed to this action is untenable. It is well settled that this prescription provided for revocatory actions, does not apply to the action in declaration of simulation. H. D. Prescription III (c) (6) No. 9; H. D. Obligations, VII (b) (2) A. No. 1.

It is equally clear that in such an action brought by a third person it is not necessary that he should have been a creditor at the date of the simulated contract. Such acts, in so far as they are simulated, vest no rights in any one, but only operate as shadows which any one interested may disregard and dissipate.

The evidence relied on by Zuberbier & Behan is that of Glennon, the party who made the notes and executed the mortgage to Pope.

His testimony was objected to on two grounds, viz: 1. That parol evidence cannot be received to vary or contradict a written act; 2. That Glennon, being a party, could not contradict his own declarations in an authentic act. Both objections fall under the direct authority of Smith vs. Conrad, 15 Ann. 579, where it was held that the true consideration of a contract (of mortgage) may be questioned by one who was not a party to it and who has an interest; and that such third person may make such proof by a party to the act, the objection that he was a party going to the credibility and not the admissibility of the testimony. See also: Davis vs. Stern, 13 Ann. 177; Dickson vs. Ford, 38 Ann. 736.

Glennon has not the slightest interest in this controversy, or, if he has any, it would favor the maintenance of the Pope mortgage. His evidence is simple, straightforward, and presents every indicium of truth and candor. He states, in substance, that Pope had been his lawyer and that he was indebted to him for professional services in an amount not fixed, but which, he says, did not, possibly, exceed $ 500 or $ 1000; that being threatened with...