Dabezies v. Barthe

Citations

• 104 La. 781

Syllabus

<p>Syllabus.</p> <p>1. One may sustain an action to set aside a hinderanee to the execution of his judgment (which hinderanee is in the shape of a mortgage averred to be without consideration), defendant having no other property liable to seizure.</p> <p>2. The action was en declaration de simulation and the allegations of the petl tion were not such as rendered it necessary for the court to order the plaintiff to elect whether he would proceed by way of a revocatory action, or en declaration dc simulation.</p> <p>3. Plaintiff, alleging that a mortgage is simulated, attacked all the asserted consideration of the mortgage, including the asserted consideration of an old mortgage which entered into and formed part of the new mortgage specially attacked. In effect, both mortgages were attacked.</p> <p>On the Merits.</p> <p>4. Plaintiff's claim had not been novated. It dated from a time anterior to the claim of defendants, and is not subject to the objection that plaintiff could not attack an act of a prior date to that of plaintiff’s claim. Besides, one not a creditor at the date of the execution of an act may yet show its simulation.</p> <p>5. The facts and circumstances were such as to shift the burden of proof from the plaintiff to the defendant. After the onus of proof had shifted because of the evidence of simulation, defendants failed to sustain then-position in the cause by proving that the mortgage had the consideration alleged.</p>