James McCoy, Appellant, v. Zachariah Rhodes and his Wife, Luminda Montgomery, 11 How. 131

Mr. Justice CATRON delivered the opinion of the court. McCoy recovered a judgment against Rhodes, in a State court of Louisiana, for the sum of $1,546, on the 24th of February, 1840 ; and on the 7th of March following this judgment, was recorded in the mortgage office of Concordia parish. The bill seeks to subject certain lands in possession of Rhodes to satisfy the judgment. . Three of the traqts were entered as United States lands, in the name of Eli Montgomery, but which the bill, alleges were the property of Rhodes, and covered by Montgomery’s title to prevent Rhodes’s creditors from reaching them.

This is directly denied by the answer, and, there being no proof to the contrary, complainant must fail as respects these three parcels. The bill also seeks to subject a fourth tract, entered by Rhodes (December 6,1839) in his own name, and conveyed to Montgomery next day, December 7,1839. This deed was first recorded, in the proper office of Concordia, December 10,1841; and is for the northwest quarter of section' No. 29, T. 10, R. 10 east, containing 160T\°ff acres. ' On the 10th of December, 1841, Montgomery,conveyed the four- tracts to Thomas J.

Ford, who afterwards (November 2, 1842) rescinded the contract of purchase, and conveyed to Ljiminda Montgomery Rhodes, wife of Zachariah Rhodes. Rhodes and wife are the only defendants. In regard to the northwest quarter of

section No. 29, they jointly answer and say: — “ True it is that this respondent, Zachariah Rhodes, did, on the 6th day of December, 1839, enter at the land-office at Ouachita, Louisiana, the northwest quarter of

section No. 29, in township No. 10 of range 10 east, and that he took a receipt for two hundred dollars and twenty-five cents, the price thereof under the laws of the United States; but .these respondents aver that the entry aforesaid was made by this respondent, Rhodes, for Eli Montgomery, of the State of.

Mississippi ; that the said Eli Montgomery did furnish the money to pay for the same, and the same was actually paid for out óf the moneys so furnished by the said Montgomery; and that the conveyance of the same to the said Montgomery by this responden cde as set forth in the said complainant’s bill, was made to complete the legal title in his, said Montgomery’s name, according to- the original intent of all parties, and as equity and justice required; this respondent, Z.

Rhodes, having .only acted as the agent of the said Montgomery, and for his use, in making said entry, and paying the said money; and .not with any view to. cheat, defraud, or wrong the said plaintiff, as is falsely charged in said plaintiff’s bill.” Respondents admit thát the entry was made in Rhodes’s own name, and was, when made, prima ‘facie liable to be seized on execution as his property ;• but then, in avoidance of this admitted liability, they allege that Montgomery’s money was paid into the land-office, and that this was done in .fulfilment of some previous agreement between Rhodes find Montgomery, by which an equity existed in the Matter to have the benefit of Rhodes’s preemption right of entry, as an actual settler.

There is no proof in the cause of the facts above set forth by the answer. That Montgomery furnished the money paid, and that the land was .entered for his use under a previous ^ agreement, are facts within the peculiar knowledge of respondents ; they are not responsive to charges made by the bill, but set up as an independent defence. Tn such case the rule is, “ that a discharge set up in avoidance, coupled with an admitted liability, if the answer be replied to, (as here it is,) must be proved by the defendant.”' • ' This is the settled rule. Hart v. Ten Eyck, 3 Johns. Ch. 88; Napier v. Elam, 6 Yerger, 112.

As the respondents cannot make evidence for themselves, and thereby establish an equity in Montgomery, it follows that tfye defence must fail so far as the- equity set forth is relied on. Having disposed of this part of- thé controversy on the pleadings and want of proof, it-becomes unnecessary to examine what bearing the act of July 22, Í838, c. 119, (5 Stat/at Large, 251,) has on the foregoing facts. - The next, ground of defence relied on is the conveyance made by Rhodes, to Montgomery of the 7th of December, 1839.

It was recorded December 10, 1841. -According to the .statute law of Louisiana, no notarial act concerning immovable property has effect against third .persons, until the same shall have been recorded in the office of the judge of the parish where such property is situated. In relation to third persons, the act of sale not recorded is considered as void. For an exposition of the Louisiana statute we refer to the case of Gravier v. Baron.(4 Louisiana R. 239), and which has been since followed by the Supreme Court of Louisiana.

The~ - deed from Rhodes to Montgomery being a notarial act, it took effect on the 10th of December, 1841, against McCoy, the judgment creditor; and as the lien of the judgment, or- judicial mortgage, attached the 24th of February, 1840, when the title was in Rhodes the debtor, this deed is of no force as again.st . the judgment, nor are the subsequent deeds founded on it; and therefore McCoy has a right to .have the northwest quarter df

section No. 29 sold. . Some supposed difficulty exists on .the head of jurisdiction for want of parties, Eli' Montgomery not being before the court. We do not deem him a necessary party to this suit; he has no interest in the land,j and no right to contest the valid-. ity of the judgment against Rhodes.

And, in the next place, we are of opinion that all necessary parties were before-the Circuit Court according to the forty-seventh and forty-eighth rules of chancery practice published by us in 1842, as the' bill alleges that Eli Montgomery permanently resided beyond the jurisdiction of the court; which was not contested by plea, nor was any objection made below against proceeding to a final decree for want of parties. For the reasons stated, it is ordered that the decree dismissing the bill be reversed, and that the cause be remanded to the Circuit Court, there to be proceeded in according to this opinion. Order.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for, the District of Louisiana, and was a’gued by counsel. On consideration whereof, it is now here ordered, adjudged, and decreed by this court, that the decree of the said Circuit Court in this cause be, and the same is hereby, reversed, with costs, and that this cause be, and the same is hereby, remanded to the said Circuit Court, for further proceedings to be had therein, in conformity to the opinion of this court.