
    Joseph Carmouche, Administrator, et al. v. Cydalise Carmouche et al.
    A donation of a slave with the reservation of the usufruct to the donor, during1 his life, is radically null.
    APPEAL from the District Court of Avoyelles, Ogden, J.
    
      Barlow & Waddill, F. Gannon and W. F. Goohe, for plaintiff.
    
      II. & 8 Taylor, for defendants and appellants.
   Spoffoed, J.

In 1831, GUment Garmouehe, ancestor of the plaintiffs, made a donation inter vivos, to his daughter Oydalise, (one of the defendants,) of his slave Helene, then aged about thirty years. This donation was made with the reservation of the enjoyment or usufruct of the slave to the donor, for the term of his life.'

Pour or five years after the date of this donation, Helene gave birth to a child named Claire, also a defendant in this suit.

Glement Oa/rmouohe, died in 1854; Helene always remained in his possession as his slave. Glair grew up in the same cabin with her mother, and remained in the possession of GUment Garmouehe, until about the period of his death. She did light work about the house. The evidence concerning her treatment is somewhat contradictory. Some of the witnesses speak of her as Garmouehe's slave, although indulged as a house servant; whilst others say, she was treated as a free person, and spoken of in the family as free.

But we think it clear, upon the whole, that she never enjoyed absolute freedom at any rate, until shortly before the death of Garmouehe. She was born a slave; she lived with a master, who had and exercised, occasionally at least, the right of controlling her. The donation of her mother to the defendant, Cydalise Garmouehe, was radically null. C. C. 1524; Dawson v. Holbert, 4 An. 36; Haggerty v. Corri, 5 An. 433. As it conveyed no title to Oydalise, the latter had no power to emancipate Glaire, which she attempted to do by selling her to herself on the 17th October, 1853.

The attempt of Glair to buy horself, shows that she did not then consider herself free. This transaction was a palpable effort to evade the law which restricts the right of manumission. In the January preceding, GUment Qw'mouehe had applied to the Police Jury of his parish for permission to emancipate Glair, which was refused. He undoubtedly desired and intended to give her her freedom, hut it has never been lawfully accomplished. The District Judge thought that she could not invoke the prescription established by the Article 3510 of the Code, until she attained the age of thirty years, as the Article 185 prohibits the emancipation of slaves under that age. However this may be, we find that she has not been in the enjoyment of her liberty adversely to her master, for the space of ten years prior to the institution of the suit, and that the master had not lost possession of her from her birth, for any period up to a short time before his death.

The action is not, therefore, barred. O. O. 3510.

Judgment affirmed.  