The opinion of the court was delivered by
Nicholls, 0. J.
We may say at once that NeustadtI, not having himself appealed, is not authorized to ask an amendment of the judgment obtained by intervenors.
We think a determination of the issues presented to us will be disposed of by taking up first the situation between the plaintiff and defendant without reference to the intervention which has been filed. As between those parties the issues are within narrow compass. Without assigning any reason for its judgment to that effect the District Court perpetuated the injunction which NeustadtI had caused to issue, restraining his vendor from proceeding to enforce the notes representing the price of the sale to him, and the enforcement of the mortgage and vendor’s privilege securing the same. In our opinion the judgment is erroneous.
The contention by the defendant that the plaintiff, Mrs. Godwin, is estopped from enforcing the notes she holds, because in the former suit she declared the sale to be a simulation, designed to protect her property from the consequences of a judgment which might be rendered in a certain suit brought by one H. T. Foote against her for her husband’s debts, and sought to have the act of sale set aside on that ground, because the answers he gave to certain interrogatories propounded to him in that suit conclusively bind her in the present [850]*850one, and because the placing of the property in bis name, under the circumstances it was done, was contrary to good morals, and should cause the doors of the courts to be barred against her, are none of them tenable.
The issue in the first suit was simulation vel non. The plaintiff asserted the simulation of the act of 2d January, 1888; the defendant denied it, and on being subjected to examination on facts and articles, answered in a manner to cause the issue to be determined adversely to the claim for simulation.
The answers of the defendant in that suit to interrogatories on facts and articles fulfilled their purpose, and caused the act to be maintained as an act of sale.
The interrogatories propounded to him were all asked in support of the charge of simulation, and their effect must be limited to that particular issue.
What the actual relations of the parties were (upon the hypothesis of the sale being a reality) was immaterial for the purposes of that suit, and foreign to the subject matter being investigated, and anything and everything in the answers outside of what was strictly necessary, for the decision of the particular issue involved in it was, so far as any future advantage to Neustadtl in a future suit involving other issues was concerned, utterly worthless. It would be a convenient and easy method of settling rights of parties if the defendant in a case, when interrogated on facts and articles, were authorized to broaden out his answers not only to meet the exigencies of the case before the court, but to meet possible exigencies of cases to arise in the future. We give effect to his answers to the extent of establishing the fact that the sale to him was a reality, not a simulation — further than that he can not ask. If the sale being real and apparently absolute and unconditional, there existed really covered limitations, conditions and purposes not stated on the face of the act, and they are susceptible of proof, that proof has to be made here through original competent evidence.
The plaintiff in this suit is not estopped, because in the former suit she pleaded that the act of sale was simulated. She tendered that issue to the defendant, who met it by alleging and, through his own answers, proving its reality. The decision of the court closed the question of simulation favorably to defendant, but in doing so it carried with it the disadvantage to him of being subsequently forced to [851]*851meet the obligations which he assumed in the act, then declared to be real. If there be estoppel in this case it is he, not Mrs Godwin, who is estopped on the issues as now presented. Parties are not bound by allegations unsuccessfully pleaded. Eng. and Am. Ency. of Law, Vol. 7, p. 3, note 2; McQueen’s Appeal, 104 Pa. St. 595; Appeal of Susquehanna Ins. Co., 105 Pa. St. 615.
The plaintiff in this suit was legally authorized to sue upon the notes and enforce the mortgage, and the situation of affairs is not such as to warrant the defendant invoking against her the doctrine of a want of morality in the bringing of the suit. The case' falls directly under the principle announced in Greffin’s Ex’r vs. Lopez, 5 Martin, 166, in which the executor was seeking from Lopez the reconveyance of property which had been transferred to Lopez by Greffin upon the ground that the act was a simulation, and the suit was met by the objection urged here. The Supreme Court said: “In the present case the plaintiff sought to avert the consequences of threatened or impending prosecutions, covered his property, and, re integra, died. We find no instance in which a plaintiff similarly situated was denied relief, except under the common law of England, which declares fraudulent conveyances binding on the parties.
“ But neither the principle of the common law of England nor the disposition of the statute of Elizabeth are known to be laws of this State, and we are bound to disregard them.” In the case at bar the sale was resorted to for the purpose, let it be admitted, of protecting the property of Mrs. Godwin against the special claim of one Foote, who had brought suit against her to make her and her property liable for the debts of her husband, as she believed unjustly. The suit in question resulted in establishing the fact of her non-liability, and she would have been entitled to a reconveyance had not Neustadtl’s answer blocked the way. It is a mistake to suppose that she is in this suit seeking to enforce an immoral contract; on the contrary, it is the defendant who is seeking to enforce the contract or arrangement which he declares reprobated by good morals. If this property were to remain in defendant’s ownership, the creditors of Godwin, if such there be, would be placed at great disadvantage and possibly cut off by prescription, while by enforcing the sale with the light thrown on this transaction by the lawsuits which have occurred, will place an easy remedy within their grasp. If [852]*852the object was immoral, it is much more likely to be frustrated through this suit than by letting matters stand as they are. Antoine vs. Smith, 40 An. 566.
There is no evidence in this suit of the existence of the state of facts which NeustadtI declares as being those under which the act of sale was passed. He depends upon his answers to the interrogatories propounded to him in the other case. They do not serve him here. There is a great improbability that such a state of facts existed. If Mrs. Godwin’s intentions had been such as defendant declares, she would scarcely have sought to retain the hold on the property which was evidenced by the notes and mortgage which were given; besides this, the wife of NeustadtI is only one of four of the children, issue of Godwin’s marriage with plaintiff, and it is not at all likely that she would have secured the legitime of one child, without reference to that of the others. We think the condition of Godwin’s succession was such as to make it very doubtful whether the children had any legitime to be secured. Godwin in his will acknowledged an indebtedness to his wife of twenty thousand dollars. With his succession liable for the payment of that debt, the
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The opinion of the court was delivered by
Nicholls, 0. J.
We may say at once that NeustadtI, not having himself appealed, is not authorized to ask an amendment of the judgment obtained by intervenors.
We think a determination of the issues presented to us will be disposed of by taking up first the situation between the plaintiff and defendant without reference to the intervention which has been filed. As between those parties the issues are within narrow compass. Without assigning any reason for its judgment to that effect the District Court perpetuated the injunction which NeustadtI had caused to issue, restraining his vendor from proceeding to enforce the notes representing the price of the sale to him, and the enforcement of the mortgage and vendor’s privilege securing the same. In our opinion the judgment is erroneous.
The contention by the defendant that the plaintiff, Mrs. Godwin, is estopped from enforcing the notes she holds, because in the former suit she declared the sale to be a simulation, designed to protect her property from the consequences of a judgment which might be rendered in a certain suit brought by one H. T. Foote against her for her husband’s debts, and sought to have the act of sale set aside on that ground, because the answers he gave to certain interrogatories propounded to him in that suit conclusively bind her in the present [850]*850one, and because the placing of the property in bis name, under the circumstances it was done, was contrary to good morals, and should cause the doors of the courts to be barred against her, are none of them tenable.
The issue in the first suit was simulation vel non. The plaintiff asserted the simulation of the act of 2d January, 1888; the defendant denied it, and on being subjected to examination on facts and articles, answered in a manner to cause the issue to be determined adversely to the claim for simulation.
The answers of the defendant in that suit to interrogatories on facts and articles fulfilled their purpose, and caused the act to be maintained as an act of sale.
The interrogatories propounded to him were all asked in support of the charge of simulation, and their effect must be limited to that particular issue.
What the actual relations of the parties were (upon the hypothesis of the sale being a reality) was immaterial for the purposes of that suit, and foreign to the subject matter being investigated, and anything and everything in the answers outside of what was strictly necessary, for the decision of the particular issue involved in it was, so far as any future advantage to Neustadtl in a future suit involving other issues was concerned, utterly worthless. It would be a convenient and easy method of settling rights of parties if the defendant in a case, when interrogated on facts and articles, were authorized to broaden out his answers not only to meet the exigencies of the case before the court, but to meet possible exigencies of cases to arise in the future. We give effect to his answers to the extent of establishing the fact that the sale to him was a reality, not a simulation — further than that he can not ask. If the sale being real and apparently absolute and unconditional, there existed really covered limitations, conditions and purposes not stated on the face of the act, and they are susceptible of proof, that proof has to be made here through original competent evidence.
The plaintiff in this suit is not estopped, because in the former suit she pleaded that the act of sale was simulated. She tendered that issue to the defendant, who met it by alleging and, through his own answers, proving its reality. The decision of the court closed the question of simulation favorably to defendant, but in doing so it carried with it the disadvantage to him of being subsequently forced to [851]*851meet the obligations which he assumed in the act, then declared to be real. If there be estoppel in this case it is he, not Mrs Godwin, who is estopped on the issues as now presented. Parties are not bound by allegations unsuccessfully pleaded. Eng. and Am. Ency. of Law, Vol. 7, p. 3, note 2; McQueen’s Appeal, 104 Pa. St. 595; Appeal of Susquehanna Ins. Co., 105 Pa. St. 615.
The plaintiff in this suit was legally authorized to sue upon the notes and enforce the mortgage, and the situation of affairs is not such as to warrant the defendant invoking against her the doctrine of a want of morality in the bringing of the suit. The case' falls directly under the principle announced in Greffin’s Ex’r vs. Lopez, 5 Martin, 166, in which the executor was seeking from Lopez the reconveyance of property which had been transferred to Lopez by Greffin upon the ground that the act was a simulation, and the suit was met by the objection urged here. The Supreme Court said: “In the present case the plaintiff sought to avert the consequences of threatened or impending prosecutions, covered his property, and, re integra, died. We find no instance in which a plaintiff similarly situated was denied relief, except under the common law of England, which declares fraudulent conveyances binding on the parties.
“ But neither the principle of the common law of England nor the disposition of the statute of Elizabeth are known to be laws of this State, and we are bound to disregard them.” In the case at bar the sale was resorted to for the purpose, let it be admitted, of protecting the property of Mrs. Godwin against the special claim of one Foote, who had brought suit against her to make her and her property liable for the debts of her husband, as she believed unjustly. The suit in question resulted in establishing the fact of her non-liability, and she would have been entitled to a reconveyance had not Neustadtl’s answer blocked the way. It is a mistake to suppose that she is in this suit seeking to enforce an immoral contract; on the contrary, it is the defendant who is seeking to enforce the contract or arrangement which he declares reprobated by good morals. If this property were to remain in defendant’s ownership, the creditors of Godwin, if such there be, would be placed at great disadvantage and possibly cut off by prescription, while by enforcing the sale with the light thrown on this transaction by the lawsuits which have occurred, will place an easy remedy within their grasp. If [852]*852the object was immoral, it is much more likely to be frustrated through this suit than by letting matters stand as they are. Antoine vs. Smith, 40 An. 566.
There is no evidence in this suit of the existence of the state of facts which NeustadtI declares as being those under which the act of sale was passed. He depends upon his answers to the interrogatories propounded to him in the other case. They do not serve him here. There is a great improbability that such a state of facts existed. If Mrs. Godwin’s intentions had been such as defendant declares, she would scarcely have sought to retain the hold on the property which was evidenced by the notes and mortgage which were given; besides this, the wife of NeustadtI is only one of four of the children, issue of Godwin’s marriage with plaintiff, and it is not at all likely that she would have secured the legitime of one child, without reference to that of the others. We think the condition of Godwin’s succession was such as to make it very doubtful whether the children had any legitime to be secured. Godwin in his will acknowledged an indebtedness to his wife of twenty thousand dollars. With his succession liable for the payment of that debt, the legitime of the heirs would be little if anything, and Mrs. NeustadtI has been shown to have received already quite a large amount from her 'father’s succession.
We think the plaintiff entitled to have the injunction which issued set aside, and to have judgment in her favor, as asked for by her, in her petition.
We now come to the demand of the intervenors, which was sustained by the lower court. It was based upon a contract between the husband of the plaintiff and John Eaton, the husband of one of the intervenors, and father of the others, by which Godwin bound himself to pay Eaton a certain portion of a claim which he (Godwin) was then prosecuting before the claims commission at Washington, D. C., provided Eaton would give his assistance toward procuring the claim. Eaton died in 1877 or 1878. Godwin died in 1888, leaving a will, in which he bequeathed to h.s wife, Clara C. Godwin, in usufruct during her life, what would remain of his estate after the payment of his debts. The will was probated, and the widow and heirs placed in possession by judgment of court of the 25th day of January, 1887. No application was made by any one for a separation of patrimony, nor is there any evidence before us that either [853]*853the claim of the widow and heirs of Eaton, or any other claim, was registered, as required by Art. 3275, C. C. The succession as such, and the property, as succession property, has long since ceased to exist. The property in litigation in this suit stood in the name of the wife of Godwin, and was sold (or apparently sold), by her to Neustadtl as her property. She appears to have been separate in property from her husband, who, in his will, recognizes his indebtedness to her in the sum of twenty thousand dollars.
It is true that in Godwin’s will this particular piece of property is placed by him among the assets of his estate, and referred to “ as standing in the name of the wife,” coupled with the declaration “ it was to be deducted out of the twenty thousand dollars due her at what it was worth, or may bring at sale, or she can take it at my valuation, worth to-day five thousand seven hundred and fifty dollars.” But the statement of the husband did not divest the wife of the ownership of the same, if, in point of fact, it belonged to her.
It is not alleged in the petition of intervention that it either now or at any other time belonged to Godwin. Intervenors deal with Mrs. Godwin as the universal legatee of her husband, and, as such, bound for all his debts. Godwin left a number of children, who are not only his legal but his forced heirs, and intervenors are in error in supposing her to be her husband’s universal legatee and bound for his debts. Article 583 of the Civil Code declares: “ The universal usu-fructuary, or usufructuary under a universal title, whose usufruct has been constituted by act of last will, is not directly bound for the debts of the testator; that is to say, the creditors of the succession have no action against him to force him to discharge the debts out of his own estate, saving their rights to cause to be seized the effects -of the succession, and to proceed against the heir of the testator to obtain payment.”
The heirs of the testator are not parties to this suit, and Mrs. Godwin is not the proper party against whom and contradictorily with whom this unliquidated claim has to be brought to judicial recognition. They are the real parties interested in the matter, assuming this property to have ever belonged to Godwin, or to still belong to a “ succession.” It certainly could not be seized or ordered to be seized until the debt for the satisfaction of which it is to be seized has been legally established contradictorily with the parties owing the debt and owning the property. We do not think the judgment [854]*854can stand. The view we take of the situation relieves us from examining the question whether the intervenors, holding an unliqui-dated claim, had the right to come in the case at all for the purpose of having it therein liquidated, and whether intervenors would be entitled to a judgment, if the proper parties were before the court, under the evidence.
For the reasons herein assigned it is hereby ordered, adjudged and decreed that the judgment of the District Court, appealed from, be and the same is hereby annulled, avoided and reversed in its entirety, and that the petition of intervention and demand in intervention of Marie C. Landry, widow of John Eaton, of Marie I. Eaton, wife of H. T. Laroque, of M. 0. Eaton, wife of G. I. Yoorhies, and of Gabrielle Eaton, wife of F. E. Voorhies, be and the same is hereby dismissed, the rights of the intervenors to proceed and make available whatever rights they may have under the contract, declared on by them against the proper parties, in some other proceeding, being expressly reserved.
It is further ordered, adjudged and decreed that the injunction which issued in this case, upon the petition of the defendant, Frederick S. Neustadtl, be and the same is hereby set aside, with the right of the plaintiff herein, Clara C. Godwin, to sue for damages for the issuing of the same being expressly reserved.
It is further ordered, adjudged and decreed that the sheriff of the parish of Orleans be and he is hereby ordered to proceed to the advertisement and sale of the property by him ordered to be sold, under the order of the judge of Division “ E ” of the Civil District Court for the parish of Orleans, bearing date July 1, 1890, and rendered upon the petition of Clara Godwin, widow of David R. Godwin, in the suit entitled Mrs. Clara C. Godwin vs. F. S. Neustadtl, number thirty thousand five hundred and forty-eight of the docket of the Civil District Court for the parish of Orleans; intervenors to pay costs of their intervention in both courts, defendant, Neustadtl, to pay all other costs (including the costs in the injunction proceedings) in both courts.