Lowry v. Martin Bros.

Louisiana Court of Appeal

Lowry v. Martin Bros.

1 Gunby 86

DecidedJuly 1, 1885

StatusPublished

This text of 1 Gunby 86 (Lowry v. Martin Bros.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Lowry v. Martin Bros., 1 Gunby 86 (La. Ct. App. 1885).

Pincite

Opinion

Gunby, J.

Actual insolvency of the debtor, and the knowlege thereof by the vendee, are not the only grounds on which sales may be annulled by the revocatory action. Proof of injury and fraudulent intent of both parties suffice to revoke all contracts. C. C. 1983; 6 An. 552; 34 An. 992.

2 Where the vendee knew that he was receiving in payment all the debtor’s property to the prejudice of others, the sale is fraudulent.

3. Allegations of simulation and of fraudulent, but real sale, are inconsistent, and plaintiff may be compelled to elect. In such a case an attachment will not lie. Sequestration or injunction is the proper conservatory remedy in a revocatoria action.

4. A giving in payment by an insolvent, prohibited by C. G. 2658, is not an absolute but a relative nullity. C. C 1983.

5. Where a sale is revoked, the vendee is entitled to recover back the cash paid by him without interest. C. C. 1997.

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Gunby, J.

Actual insolvency of the debtor, and the knowlege thereof by the vendee, are not the only grounds on which sales may be annulled by the revocatory action. Proof of injury and fraudulent intent of both parties suffice to revoke all contracts. C. C. 1983; 6 An. 552; 34 An. 992.

2 Where the vendee knew that he was receiving in payment all the debtor’s property to the prejudice of others, the sale is fraudulent.

3. Allegations of simulation and of fraudulent, but real sale, are inconsistent, and plaintiff may be compelled to elect. In such a case an attachment will not lie. Sequestration or injunction is the proper conservatory remedy in a revocatoria action.

4. A giving in payment by an insolvent, prohibited by C. G. 2658, is not an absolute but a relative nullity. C. C 1983.

5. Where a sale is revoked, the vendee is entitled to recover back the cash paid by him without interest. C. C. 1997.

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Bluebook (online)

1 Gunby 86, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lowry-v-martin-bros-lactapp-1885.