KELSO vs. BEAMAN, 10 La. 450

Martin, J., delivered the opinion of the court. The facts of this case are briefly these. In 1828, G. C. Russell mortgaged to the defendant, a plantation and slaves for the sum of seven thousand eight hundred and ninety dollars. In the month of October, 1829, the mortgaged premises were seized and sold, at the instance of several judgment creditors of Russell, and was purchased in by the defendant Beaman, for the sum of two thousand dollars, above the amount of his mortgage.

Afterwards, to wit: on the 23d of October, 1829, Russell and Beaman entered into a written agreement, in which they declare and stipulate, “ that if the said G. C.

Russell shall pay to him (Beaman,) the said sum of two thousand dollars, and also the sum of three thousand five hundred and forty-two dollars, being the true balance, in fact, due on the above mortgage, as appears by an instrument filed in the office of the parish judge of Rapides,.dated the 17th January, 1829, or such an amount as may be fixed on under a reservation in said instrument; as well as all such costs and charges, and interest, as may be justly due thereon; and also such sum as he (Beaman) may be bound to pay on the final decision of a suit now pending in favor of Elijah Montgomery against said Russell, on account of said property, and all costs, interest arid charges he may be at in defending said suit; also, whatever sum he may pay on account of judgments or liens on said property; then, and in that case, he (Beaman) obligates himself to re-convey said property to the said Russell, provided the said payments be made on or before the first of January, 1831.” .. , - the assignee of supposed"cred¡-íí¡ea ciaim^and h.e cannot exer-cisc the richts thus acquired in nerthanTiie^upI P°set\ «^editor or assignor could have done.

A purchaser at public sale of a right or debt alleged to due > an°- “And it is moreover understood, that the purchase of the said property was made at the instance and request of the said Russell, and that he (Russell) renounces any claim he might have against the said Beaman on account of the difference between the price of the aforesaid negroes and the aforesaid sum of three thousand five hundred and forty-two dollars, fixed on as before stated, as the true sum due the said Beaman on the aforesaid mortgage.” In February* 1834, the plaintiff purchased, at a sheriff’s sale “ the whole debt due by Beaman to Russell, and all the right,' title and interest which the said Russell might have in and to any species of property in the hands of said Beaman, either real or personal, rights or credits, or any balance which might be due from the said Beaman to the said Russell.” The present action is brought to recover the sum of five thousand dollars, which is alleged to be due to the plaintiff on account of his purchase.

There is also an allegation, that there has been fraud and collusion between the said Russell and Beaman, for the purpose of defeating the just creditors of the former. The defendant pleaded the general issue. judgment in his favor, and the plaintiff appealed. There was The appellant stands before us as the assignee of Russell’s rights, and cannot exercise them in any other manner than Russell could before the assignment. These rights result o o from the instrument bearing date the 23d October, 1829.

We have looked there in vain for any clause that might authorize in Russell an absolute demand of five thousand dollars, or any other sum. He might indeed, under that instrument, on a payment or tender of certain sums of money, and on showing the release of the defendant from the responsibilities which he had incurred for Russell, have demanded a reconveyance of the mortgaged premises, and an account of the revenues produced by them. This he has not done. And it is even doubtful whether it could have been done after the expiration of the time limited in the instrument.

As assignee, a avaií himseiTof íuíion^bebreen the assignor and gainst -whom he his ciaim?nt'°rCe As assignee of Russell, the plaintiff could not have availed ^lmse^ °f any fraud or collusion between the former and the defendant. If this fraud gave any action to the creditors of the former, it was, perhaps, restricted to a demand of the rescission of the sale under which the defendant had acquired the mortgaged property. This right could only have been exercised by instituting suit within the year.

In relation to the charge of fraud and collusion, we are without any evidence except that which is presented to us in the transaction, of which the instrument, dated the 23d of October, 1829, is the evidence. We are not ready to say that any fraud or collusion is shown, or results therefrom. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed with costs.