Scully v. Kearns

14 La. Ann. 436

• Court: Supreme Court of Louisiana
• Decided: May 15, 1859
• Status: Published

Opinion

Cole, J.

On the 10th of February, 1855, judgment was rendered in favor of Laurence ICearns against John Cavanaugh, for $225, with legal interest, for work done for the latter, and materials furnished by Kearns, in his vocation as a blacksmith, to the said Cavanaugh.

An execution issued, and the Sheriff seized a steam engine and boiler, and and some other movables, whereupon Maurice Scully, the plaintiff enjoined the sale, averring the property seized to be his.

There was judgment for defendant, dissolving the injunction, and plaintiff has appealed.

The testimony clearly establishes the sale of these movables from Cavanaugh to Scully, to have been simulated.

The price may, indeed, have apparently passed from Scully to Cavanaugh, but it is evident that the money was either advanced in part by Cavanaugh or by other persons, and that Cavanaugh returned the price.

It was never intended to be any tiling but a sham sale for the purpose of defrauding Kearns. The price was never intended to be a real one, and Cava-naugh was not to keep the same.

Under such circumstances, the judgment creditor of the protended vendor in this simulated sale, was not bound to proceed by the revocatory action, in order to have the sale annulled, but was entitled to consider the sale as without reality, and to seize the property as that of the vendor.

Judgment affirmed, with costs.