delivered the opinion of the court.

This is a petitory action in which the plaintiff alleges his title to a certain slave named in the petition, and claims to recover him from the defendant, in whose possession the property was, at the time of commencing suit. She", in her answer, does not set up title in herself, but avers that the slave in question belongs to the succession of her husband, which is administered by E. E. Parker, who intervened in the suit and claimed him for the benefit of said succession. Judgment was rendered in the court below, in favor of the plaintiff, from which the intervenor appealed.

The immediate title under which.the appellee claims, is-an act of sale from F. Proctor, who purchased the slave at a public sale made by the marshal of the City Court, in pursuance "of an execution issued on a judgment which the plaintiff had obtained against one Gomez; the property being seized as belonging to the defendant in that case.

The title set up by the intervenor, in favor of the succession of John Denison, rests on a sale made by Gomez, of all his property to Denison, during the lifetime of these parties, they both being now dead. Amongst the property sold, the slave in dispute was included. On the validity of this sale, depends the claim of the appellant. It was considered as simulated when the seizure was made under the execution of the plaintiff. This took place when Denison was living, and the property was seized while in his possession, as belonging *546to Gomez, and was willingly given up by the possessor, who was present at the adjudication made by the marshal, and made no objections to the propriety and legality of the proceeding.

If Denison be considered as a person having common understanding, and in the least degree capable of knowing and estimating his rights to property, his conduct above stated, as disclosed by the testimony, was virtually an acknowledgment that he had no just claim to the slave thus seized and sold; and, consequently, that the sale from Gomez to him was simulated and without effect; so far, at least, as it purported to convey title to the property now in question. If, then, by his own tacit admissions, he had acquired no title by the pretended sale from Gomez, who was the owner, the purchaser at the sale by the marshal, obtained a- valid title, which he soon after conveyed to the plaintiff.

The conduct of Denison, subsequent to the time when the plaintiff assumed the rights of an owner, under the sale from Proctor, as shown by the testimony, strongly corroborates the truth of the principles which we have assumed. The slave returned into his possession, and when demanded from him, on the part of the plaintiff, so far from setting up any claim of property, he agreed to pay him for the use of his services.

If we are correct in this view of the cause, all the doctrine on the subject of suits to annul contracts and prescriptions provided for them, relied on in favor of the appellant, may well remain unnoticed, as inapplicable to this case.

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