# Petetin v. His Creditors > Supreme Court of Louisiana · May 29, 1899 · 51 La. Ann. 1660 URL: https://www.frixlaw.com/law-library/cases/7198008 ## Case - **Full name:** Jules Petetin v. His Creditors ex rel H. and C. Newman v. Jules Petetin, Syndic, Tutor, etc. Certified from the Court of Appeals, Third Circuit, by the Judges Thereof Applying for Instructions - **Court:** Supreme Court of Louisiana - **Decided:** May 29, 1899 - **Citations:** 51 La. Ann. 1660; 26 So. 471; 1899 La. LEXIS 606 - **Precedential status:** Published - **Opinion:** On rehearing by Watkins - **Judges:** Breaux, Watkins - **Cited by:** 1 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/7198008 ## Opinion text On Application for Eehearing. Watkins, J. H. & C. Newman are creditors of Jules Petetin, and brought a revocatory action for the annulment of a dation en pmement made by him to his wife, on the ground that said dation was *1667 without consideration, and a prohibited preference by the husband, •who was insolvent. It appears from the record that Ilermina Petetin, maiden sister of Jules Petetin, made a donation inter vivos to Cora Renaud,, wife of Jules Petetin, on the 3rd of May, 1895, of a debt due by Jules Petetin to her. That on May 13th, 1895, Jules Petetin made a dation en paiement which is attacked, to his wife, of certain property, in satisfaction of the aforesaid indebtedness. That on October 25, 1895, Jules Petetin made a cession of his property to his creditors, and acknowledged the debt of H. & C. Newman; but the schedule of assets did not carry the real estate which had been previously transferred to his wife. Mrs. Jules Petetin, having died, leaving minor children, issue of her marriage with Jules Petetin, he was appointed and qualified tutor, on September 19th, 1896. The revocatory action of H. & C. Newman having been filed, Jules Petetin, personally, and as syndic, accepted service of the petition of H. & 0. Newman, on the 2nd day of June, 1897 — more than twelve months subsequently to the cession of Jules Petetin. It is conceded that the dation en paiement was a real contract, in the sense of not being simulated, and that Mrs. Petetin took possession of the property transferred to her, and that after her death, her heirs went into possession. IT. & 0. Newman claimed to be paid by preference over the creditors of the insolvent from the proceeds of the sale of said property in case of the annulment of the dation en paiement, and the District Court so held; and from that judgment the syndic appealed to the Court of Appeals, in which a plea of prescription was filed and rejected. In our opinion, we said: “We deem it proper to state in answer to the foregoing, that, in our view, Jules Petetin- ™as indebted to his wife in the amount of the claim, of which his wife became the donee of one of her husband’s creditors. “This claim was one in commerce. Whatever value it had, the creditor chose to make a donation of it to the wife of the debtor, who was a free agent to accept donations to her, even of debts due by the husband.” But while holding that it is well settled that the wife of Jules Petetin had legally acquired the claim of his sister against him by *1668 the donation, we held that “it is settled that the husband and wife are incapable of contracting toward each other, save when the contract is within the enumerated exceptions to Revised Civil Code 2446 and 1Y90,” and consequently, held that the dation on paiement of Jules Petetin to his wife did not have “a legitimate cause, as the replacing of her dotal or other effects alienated.” Or, in other words, “ordinarily, the husband having received the price of property sold by his wife, or having received an amount due his wife from any other source, may make a transfer to her in payment of it. “The husband is then authorized under the terms of the article to reinvest the sum in her name. “But here, the husband had not received the amount at all, and it, in consequence, became a matter of some difficulty to determine whether it was still possible to make a transfer in satisfaction of the claim due by him to the wife as donee of one of his creditors. ***** * * * “But .we are convinced that the husband who is in a state of insolvency, has no right to make his wife a dation on paiement that will not come within the grasp of the revocatory action authorized by Article 19^0 et seq. of the Civil Code.” But, notwithstanding our opinion entertained and announced that theory, we further held that “the revocatory action in such a case is subject to the prescription of twelve months.” In the application for rehearing, the principal question discussed is, as to whether a contract of sale between husband and wife in any other case than that embraced within one of the exceptions of Revised Civil Code 2446, is or not an absolute nulilty; and the contention of counsel is, that the authorities show that the aforesaid nullity is absolute, and therefore, contend that this case is- not brought within the purview of Revised Civil Code 1994, limiting the revocatory action to one year. Having examined that question with care, our conclusion is, that the special provisions of the Code applicable to a revocatory action are governed by the prescription of one year, regardless of the character of the nullity in the sale attacked. Under the title of the Code, “what contracts shall be avoided by persons not parties to them,” it says, that “contracts considered with respect to their operation on property, either purport to transfer *1669 ownership, or to give some determinate right upon it.” Rev. Civil Code, 1968. Consequently, it is of the essence of the revocatory action that the suit must be instituted by a person who is not a party to the contract assailed. It is further provided, that “from the principle established by the last preceding article, it results that every act done by a debtor with the intent of depriving his creditor of the eventual right he has upon the property of such debtor is illegal, and ought, as respects such creditor, to bo avoided. This can be done in the mode and under tho circumstances set forth in the following rules.” Revised, Civil Code 1969. “The law gives to every creditor * * * an action to annul any contract made in fraud of their rights.” R. C. 0. 1970. “This action can only be exercised when the debtor has not property sufficient to pay the debts of the complaining creditor.” R. C. C. 1971. Again: “No contract shall he avoided by this action, but such as are made in fraud of creditors, and such as, if carried into execution, would have the effect of defrauding them.” R. 0. 1978. From the foregoing we gather that the law gives to persons who are not'parties thereto, a right to institute a revocatory action to annul any contract made in fraud of their rights; but same cannot be instituted for the purpose of revoking a fraudulent contract, if the debtor 'has sufficient property to discharge the debt of the complaining creditors. “If the contract be purely gratuitous, it shall he presumed to have been made in fraud of creditors, if at the time of making it, the debtor had not over -and above the amount of his debts, more than twice the amount of the property passed by5 such gratuitous contract.” R. 0. 0. 1980. This positive declaration of the Code clearly shows that even purely gratuitous contracts, those wholly without any consideration, come with the purview of this action.” “Not only contracts which dispose of property, hut all others which are ma^le in fraud of creditors, and deprive them of their recourse to the property of their debtor, come within the provisions of this section.” R. 0. 0. 3989. We have enumerated the foregoing provisions of the Code for the purpose of showing that they control the creditors’ right of action to *1670 have annulled a contract to which he is not a party, in order to subject the property disposed of to the payment of his claim, and that it is not the particular character of nullity or fraud in the contract, that controls the action. This is clearly shown by the provisions of the article which prescribe the limit within which the action must be brought, to-wit: “The action given by this section — ‘what contracts shall be avoided by this action’ — is limited to one year; if brought by a creditor individually, to be counted from the time he has obtained judgment against the debtor; if brought by syndic or other representatives of the creditor collectively, to be counted from the day of their appointment.” R. C. C. 1994. The provisions of this article are certainly broad enough, and in terms were intended to embrace all contracts which can be avoided by this action. The instant suit having been brought by way of opposition in the insolvency of Jules Petetin, claim is made that the twelve months should be counted from the day of the syndic’s appointment. Our conclusion is, that the opposition not having been filed within the twelve months’ limit specified, it came too late, and that the plea of twelve months’ prescription was properly sustained, and that without regard to the character of the nullity in the contract, of which the creditor complains. In passing upon the plea of prescription, we have only to look to, and deal with the character of the action, and not to the character of the nullity complained of in the act; and finding the action to be revocatory, it must be subjected to the rule of prescription which is applicable thereto. Rehearing refused. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7198008. Public record. Not legal advice.