ROBILLARD vs. POYDRAS, 11 La. 279

Bullard, J., delivered the opinion of the court. This controversy relates to the distribution, according to the respective rights of the parties, of the proceeds of Phillippe Robillard’s share, in his mother’s succession, which had been sold by the sheriff under a writ of fieri facias, sued out by Benj. Poydras de la Lallande. The two parties before the court, are, the wife of Robillard, who obtained a judgment against him in 1816, for the amount of her paraphernal property received by him, and the heirs of B.

Olinde, who claim under a general conventional mortgage,, dated May 25,1813, followed by a judgment two years afterwards. The first claim under a legal mortgage which took effect from the time the husband received certain sums of money coming to her from the succession of Madam Escoffier, her mother, and the second in virtue of a mortgage on present and future property, followed by a judgment, both of dates anterior to the judgment of the wife. Poydras, whose claim was postponed to the wife’s, has not appealed.

On the death of Madam Olinde, the mother of Robillard, these mortgages attached upon his undivided share of the lands and slaves belonging to the succession; and the difficulty of this case consists in ascertaining from what date they are to take their effect, relatively to each other. If Robillard had received for his wife, one thousand one hundred and eighty-three dollars, before the 25th May, 1813, we think. she has a right to be first paid the balance of her judgment against her husband. The allegation of fraud and collusion is not, in our opinion, sustained by the evidence. Mr.

Hiriart, who had been the counsel of Madam Robillard in the suit against her husband, which was instituted in 1814, states very positively that the husband had received that amount from the estate of Madam EscoiSer, in 1813. That he had a personal knowledge of several sums recovered by Robillard from the purchasers at the auction sales of Madam Escoffier’s succession. In support of this evidence, which is a little vague as to the date, we have the fact, that the property was sold in March, 1811, and the price payable one half in March, 1812, and the balance in March, 1813.

It further appears that Robillard was engaged jointly with Gremillion in making collections from the purchasers. To this it is objected, that by a settlement made by Gremillion in 1819, it appears that only eight hundred and seventy-one dollars were coming to each heir, instead of one thousand one hundred and eighty-three dollars.

Rut on examining that account we find that the whole amount of the estate was upwards of eight thousand dollars, to be divided among five heirs, and that two thousand one hundred and thirty-three dollars had been accounted for previously ; and it is the balance remaining to be liquidated, which gives to each the sum of eight hundred and seventy-one dollars. There is, therefore, no inconsistency in the two statements. The whole case turns on this question of fact, in relation to matters of ancient date, and the record does not furnish sufficient grounds to authorize us to interfere with the decision below.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.