Pelletier v. State Nat. Bank

Citations

• 117 La. 335
• 41 So. 640
• 1906 La. LEXIS 700

Syllabus

<p>1. Execution — Third Opposition — Defenses by Creditor.</p> <p>Where a wife files a third opposition claiming the ownership of certain property which had been seized under a fi. fa. by a judgment credit- or of her husband, together with damages for the seizure, and seeking an injunction against a sale under the writ, the seizing creditor has a legal interest in defending the legality of his own proceedings and resisting the claims of the wife by means of any legal defense, and evidence to which such a condition of things may give rise. He is not confined to any particular line of defense.</p> <p>2. Same — Dation en Paiement.</p> <p>Where the claim of the wife to the ownership of the property seized is based upon a transfer of the same to the wife under a dation en paiement of an alleged claim due to the wife, the seizing creditor has the right to contest such claim of ownership on the ground of the nonexistence of the debt to the amount declared, or of its entire nonexisence, and on the ground that the value of the property given in payment did not bear a just proportion to the amount of the wife’s claim. Colvin v. Johnston, 29 South. 274, 104 La. 655; Freiburg v. Langfelder, 15 South. 677, 46 La. Ann. 1418; Hyman v. Schlenker, 10 South. 623, 44 La. Arm. 108.</p> <p>3. Same — Insolvency of Husband.</p> <p>The right of the husband to make a transfer of property to his wife through a dation en paiement is an exceptional right, and can be exercised only under the circumstances and conditions fixed by the law. Unless so exercised no title passes to the wife. For resistance to the wife’s demand under such circumstances it is not necessary that the seizing creditor make and prove all the allegations called for by a revocatory action. It is not necessary that it should be alleged and shown that the husband was insolvent at the time of the dation en paiement. The fact that though he was perfectly solvent the wife and husband colluded together to withdraw all the property