
    
      BONIN & AL. vs. EYSSALINE.
    
    Appeal from the court of the fifth district.
    A. having discovered that B. had sold him land, to which he had no title gave notice, he would not pay the price, and require a rescission. Before service of the citation on B., a family meeting, being of opinion that the land could not conveniently be divided, recommended the sale of it. At the auction which followed, B. purchased the land.
    
      This was an action for the rescission of a sale of a tract of land, on the ground that the vendor had sold the thing of another; that the sale was fraudulent; and that the land was dotal.
    West'n District.
    August, 1822.
    Held that, although it did not appear, that the heirs of age had provoked a division or a sale, B. was equally protected, as if the sale had been forced on the minors: the tutor having been a party to the proceedings, and that the sale was legal; and B. having acquired a good title before the service of the citation, might well resist the plaintiff's claim.
    The defendant pleaded the general issue—that the plaintiff Bonin, immediately after the sale, took possession of the land sold, and still retains it, without ever having been disturbed: and he tendered security for any damages resulting from a legal eviction.
    There was judgment for the defendant, and the plaintiff appealed.
    The facts of the case are, that in March, 1820, the defendant sold to the plaintiff, Bonin, a tract of land of 14 ⅔ arpens, in front on the Teche. In December, following, the plaintiffs having discovered, that they had purchased what did not belong to the vendor, gave public notice of their intention to procure the rescission of the sale, and the restitution of the notes given by Bonin, for the price, endorsed by the other plaintiff.
    A few days after, a family meeting, composed of the friends of the minors Dumartrais, was called; and was of opinion, that a tract of land, mentioned in its proceedings, could not be conveniently divided, and that it therefore was proper to sell it for cash, and to divide the price. The under tutor did not intervene, and on the next day, (Dec. 28,) the judge of probates homologated the proceedings; and on the 21st of March, the land was adjudged to the defendant for $6000.
    At the time of the sale of the defendant to the plaintiff, Bonin, the 14 ⅔ arpens sold, were four undivided parts of a tract of 22 arpens, owned in equal parts by C. Gravenbert, the minors Dumartrais, in right of P. Gravenbert, their mother, and F. F. Gravenbert, the defendant’s wife, as part of her dower.
    Brent, for the plaintiffs.
    I. The defendant sold the thing of another. The land made part of his wife’s dower. Neither he nor she could sell it; neither could both jointly. Civil Code, 328, art. 36.
    II. If the land sold was the property of another, the sale is null. We find what a sale is in Civil Code, 344, id. 236, art. 63, 260, art. 8, 262, art. 9, 264, art. 31, 33. Pothier, Vente, 6, 18, 42.
    In sales good faith ought to exist, and the seller ought to retain nothing of the titles. 1 Pothier, 232 & 234. Civ. Code, 356, art. 66. If the purchaser discover that the property does not belong to the seller, he can have the sale rescinded. 1 Pothier, 239—Civil Code, 354, art. 59, 356, art. 62 & 63. The want of title is a redhibitory defect, for which the sale can be cancelled. Civil Code, 356, art. 65, 67 & 70. 12 Pandectes Françoises, 268. It is not necessary that an actual eviction should take place, a danger of being disturbed is sufficient. 3 Martin, 236, 235 & 336.
    Neither the husband nor the wife can sell dotal land; and when the law prohibits any thing to be done, if it be, the act is null. Civ. Code, 4, art. 12. Consequently, the sale of dotal land by the husband is null. Such has been the interpretation given to an article in the Napoleon Code, precisely the same as the corresponding one of that in ours. Nap. Code, 1554 & 1560. 18 Jurisp. Code Civ. 169. And such is the doctrine laid down by Domat, 47, 48. contract of sale, tit. 11, sect. 8, p. 8.
    In this state the law prohibits the sale of dower land, Civil Code, 328, art. 36, and no sale contrary to law is valid. id. 4, art. 12.
    III. If the sale was null, or if it ought to be rescinded, the district court erred in giving judgment for the appellees.
    
      If it was void, as to part, it must be avoided as to the whole. Civ. Code, 350, art. 60, 356, art. 65—72.
    An actual eviction by suit is not necessary; id. 354, art. 50. The law requires a suit in ordinary cases, as the only mode of ascertaining whether the property belongs to a third person. It is to establish this fact; but in the present case it is not necessary, because the fact can be established in another and as certain a manner, i. e. by the proof of its being dotal.
    If the suit be necessary in the present case, there is no person to bring it. The wife can sue after the death of her husband only; and before this the money might be squandered, and where could the plaintiffs have relief? Civil Code, 330, art. 30.
    It is admitted, that if Eyssaline knew that the land belonged to his wife; the sale was fraudulent and ought to be rescinded. To prove this knowlege, it suffices to refer to the marriage contract, and to the subsequent proceedings, which he thought proper to refer to, in order to acquire a title. If he did not know that he had no title when he sold, why did he deem it necessary to take these steps?
    
      It is enough for the plaintiffs to show, that when the defendant made the sale, the property was not his, and he knew it. This they have proven, as clearly as the nature of the case will admit.
    The subsequent proceedings, to which the defendant resorted, are not binding on the plaintiffs, without their consent; nor are they according to law. They have derived no title from these proceedings, because Mrs. Eysaline was not a party to them; because there was no order from the judge, for the express sale of the property; because the family meeting was not composed of relations of the minors Dumartrais, but of strangers, while it is in evidence that their uncle was living, and could have been had; because, no valuation preceded the sale, as is required in all cases in which minors are concerned.
    The extent of the defect of the defendant's title is perfectly immaterial. If he had no title to one half, and a good title to the other, the sale must be rescinded for the whole. For the plaintiff had no intention of purchasing one half of the land only.
    Cuvillier, on the same side.
    The sale of she defendant to the plaintiff, Bonin, is null
    
      We are not to inquire, whether the defendant sold, as the agents of the owners, and for their account, or in his own right. Had he sold as agent, it is clear that the ratification of the owners would have imposed on the vendees the obligation of performing their part of the contract. If he sold in his own right, the plaintiffs have a right to claim a rescission of the sale; for the sale of the thing of another is null. Civ. Code, 349, art. 18.—Jur. Code Nap. 191.
    The adjudication made to the defendant, one year after his sale to the plaintiffs, is null.
    After the plaintiffs had openly declared their intention to insist on the nullity of the sale, the defendant procured, what he terms, a family meeting, in which the under tutor did not intervene. The meeting determined, that the land which was held by the minors Dumartrais, C. Gravenbert, and the defendant’s wife, should be sold for cash. It was sold to the defendant.
    This sale, we say, is null: for it was not attended with the formalities which the law prescribes. The land of a minor (or that in which he is interested) can be sold judicially only. Civ. Code, 187, art, 166.
    
      When several persons, either of whom is a minor, have an undivided property in land, application for a division must be made to the court, who directs a valuation of the land. Id. 187, art. 167. In the present case, such valuation was not made. The interest of the minors is, therefore, unaffected by the adjudication.
    The land was dotal, and the husband could not alter it, even with the consent of the wife. Civ. Code, 330, art. 40,
    The sale to the plaintiffs is a fraudulent one; as the vendor knew he was selling what did not belong to him; as one half of the land is not worth any thing, and the vendor did not inform the vendee of this; as, if he really purchased the part of C. Gravenbert, he ought to have given his title to his vendee.
    The defendant knew the land did not belong to him, because it was the property originally of his father-in-law, at whose death if descended, in three undivided parts, to his wife, C. Gravenbert, her brother, and the minors Dumartrais.
    When one knowingly sells the thing of another, the vendee may demand the rescission of the sale, if he was ignorant of it. 12 Pand. Fr. 269. Poth. Vente.
    
    
      The defendant sold fourteen arpens and two thirds of land, without apprising the vendee, that a part of it was of no value. Judice deposes, that the front of the tract is of value to the depth of six arpents in depth: at this distance, the swamp begins. The land, in the proceedings after the death of the vendor’s father-in-law, was estimated at $2500 only, and he exacted of the plaintiff the sum of 8000.— The sale was, therefore, fraudulent; and in case of fraud, the rescission of the sale may be demanded before the vendee be disturbed.
    
      Brownson, for the defendant.
    It is contended that the land sold in the present case, was the thing of another; and that the sale is therefore void—the defendant denies the fact. He contends, that one half of the tract was vested in him by marriage contract, and that the other half was acquired by sale from Gravenbert.
    Formerly, mere estimation operated as a sale to the husband. 6 Martin, 659.
    Since the adoption of the Civil Code, mere estimation does not transfer the property, unless accompanied by an express declaration to that effect. Civ. Code, 328, art 34.
    But in this case the dotal object is not the 
      property, but the price. The expression of the marriage contract is, that the property of the wife consists : “ en une somme de quatre mille neuf cent vingt une piastres, quatre vingt trois centimts," &c. “ etant en valeur d'esclaves, bestiaux, terres," &c. referring to an act of partition for a description of those objects. The law says, estimation does not transfer the property, “unless there be an express declaration.” But does it say, that any express declaration is necessary, when the price is settled as dowry ? If the object of the dowry is property, mere estimation furnishes no proof that the wife intended to make the husband responsible for the price, in case the property should perish or be lost.—But when the price itself is constituted as dowry, it is a pretty strong indication that the wife intended to secure its return, instead of the property. It shows, at all events, that the minds of the parties were fixed strongly on the price, and not so strongly on the property. It shows that the price is the principal object of attention and that the property is merely the accessary. What strengthens this construction is, that by a subsequent clause in the same contract a favourite slave with her child, the wife, it would seem, did not intend to transfer, are constituted as a part of the dowry in the ordinary way, without any “ express declaration.”
    In regard to the other moiety of the land sold, an objection has been started in this court to the evidence, which was furnished by the plaintiff himself in the court below, of the title derived to Eyssaline from Charles Gravenbert. As I presume, a party cannot be permitted to object to his own evidence, it is unnecessary to enter into the question which the plaintiff now raises. To prove that the plaintiff himself introduced as evidence the document alluded to, I refer the court to the statement of facts, in the case of Fusilier vs. Bonin & Chretien.
    
    The court will see, from the statement of facts, that the sale from Eyssaline to Bonin, took place on the 18th of March, 1820; that Bonin went immediately into possession, and that he has never yet been disturbed, by any adverse claim. It is pretended, however, that the defendant did not give him a title, to at least one half of the thing sold, and that the sale is, therefore, void. The Civil Code is cited, 348, art. 25, which says, that the sale of a thing belonging to another person is null. This is an abstract proposition, which it becomes necessary to examine. Does it mean, that the sale is so absolutely null, as to produce no effect between parties? Or does it mean, that the sale is null as regards the owner of the thing ? The former cannot, it appears to me, be its meaning, because it would be at variance with the rest of the article, which says, that “ it may give rise to damages, when the buyer knew not that said thing belonged to another person.” The article surely cannot mean to say, that the sale, though null with regard to the parties, may give rise to damages. This would be a contradiction in terms; because what is null absolutely, can produce no effect between those, in respect to whom it is null. I should suppose that the article means, that the sale is null in a certain sense, that is, so as not to operate a transfer of the property against the real owner; but that it is not null in a certain other sense, as respects the parties; but that between them it may give rise to damages. Such appears to have been the opinion of a commentator, on art. 1599, of the Napoleon Code, from which the article of our Code has been literally copied. I refer the court to a work entitled, “ Discussions of the Napoleon Code," 3 vol. 452, art. 1598 & 1599; where the following remark will be found. “ An surplus, il resulte de l'article tel qu'il est énoncé maintenant que la vente de la chose d'autrui n'est nulle qu'en ce sens, qu’elle ne peut pas opérer la translation de proprieté de la chose vendue, mais qu’elle est valable en ce sens qu'elle produit l'action de garantie."
    
    It will, perhaps, be objected against the interpretation, that it was unnecessary for the legislature formally to declare, that the sale of the thing of another should not be binding against the real owner. That this principle is too plain, ever to have been doubted, and that legislation on the subject was unnecessary. In answer, I say, the subject was not so perfectly clear of doubt in the Roman law. I refer the court to the following text:—“ Si Presidiprovinciæ probatum fuerit, Julianum nullo jure munitum, servos tuos scientibus vendidisse, restitueritibi emptos servos jubebit. Quod si ignoraverint, et eorum facti sunt, pretium eorum Julianum tibi solvere jubebit." Cod. lib. 4, tit. 57, l. 1. Here we see a distinction was made. If the purchaser knew that the slaves did not belong to the vendor, he was bound to restore them to the owner. If he did not know that fact, and they had been delivered, the owner recovered the price from the vendor. Does not this strongly imply, that the law would protect purchasers in good faith, though, the property sold did not belong to the vendor? And yet, this was not really the Roman law, as will be seen on consulting the following authorities. ff. 50, 17, 54. Id. 18, 1, 4, 5, 28 & 70.
    The true doctrine of the Roman law, on the subject of sales, appears to have been, that the sale of the thing of another, was good between the parties, to the contract, unless the purchaser knew, at the time of the sale, that the thing did not belong to the vendor, in which case it was merely void, and the purchaser had no recourse on the warranty. Perhaps a disposition among the Roman lawyers to theorise and refine, may, at times, have betrayed them into a stiff and artificial manner of explaining those deep and solid principles of natural justice and equity, which they have been so successful in developing. Perhaps too, in some cases, we may be disposed to complain, without much reason, and in attempting to avoid their errors, we may run some risk of falling into others, still more dangerous. If we had fallen by accident, upon the proposition to be found in the Roman law, that “ the sale of a thing of another is valid,” without any of the accompanying explanations or restrictions, we should probably be struck with the injustice and absurdity of the principle. But when we come to learn, that the expression is only applied to the engagements arising between the parties, and not to the rights of him whose thing has been sold, we should probably view the subject in quite a different light. The same proposition, which might have appeared to us so objectionable in the abstract, when it comes to be explained in the correct, comprehensive, and satisfactory language of Pothier, loses all its obnoxious features, and we are immediately satisfied with the reason and justice of the principle. Thus, le contrat de vente est un contrat par lequel l'un des contractans, qui est le vendeur, s'oblige envers l'autre, de lui faire avoir librement, a titre de propriétaire, une chose, pour le prix d'une certaine somme d'argent,” &c. “ J'ai dit, de lui faireavoir à titre de propriétaire, ces termes qui repondent à ceux-ci, praestare emptori rem habere licere, renferment l'obligation de livrer la chose à l'acheteur et celle de le defendre, apres qu'elle lui a été livree, de tous troubles, par lesquels on l'empêcheroit de posséder la chose et des'en porter pour le propriétaire; mais ils ne renferment pas l'obligation précise de lui en transfér
      
      er la propriété: car un vendeur, qui vend une chose dont il se croit de bonne foi être leproprietaire,quoiqu’ ilne le soit pas, ne s'oblige pas precisément á en transférer la propriété.”—Contrat de Vente—preliminary article. Again—“On peut vendre valablement non seulement sa propre chose, mais même la chose d'autrui, sans le consentement de celui qui en estle propriétaire. Il est vrai que celui qui vend la chose d'autrui ne peut pas, sans le consentement du propriétaire, transferer la propriété de cette chose qui ne lui appartient pas.” “ Mais le contrat de vente ne consiste pas dans la translation de la propriété de la chose vendue; il suffit pour qu'il soit valable que le vendeur se soit valablement obligé de faire avoir á l'acheteur la chose vendue, et l'obligation qu'il en contracte, ne laisse pas d'etre valable, quoiqu’il ne soit pas en son pouvoir de la remplir, par le refus que fait le propriétaire de la chose, de consentir á la vente.” Id. n. 7.
    
    The compilers of the Napoleon Code seem to have been dissatisfied with the abstract rule of the Roman Law, that “ the sale of the thing of another is valid.” They seem to have considered the theory absurd, and one which might lead to mistakes in its application. They wished to avoid the subtleties and nice distinctions which they imagined they perceived in the Roman Law on this subject, and to adopt a legal phraseology which they considered more simple and natural. Prompted by these considerations, the article 1599 of the Napoleon Code was proposed at first as a project in a form somewhat different from that, which it possesses at present, was discussed in the council of state, and finally passed into a law in its present shape. We can collect from the whole discussion, which took place, that even under the ancient laws, it was believed that the sale of the thing of another was really null in regard to the owner of the thing—Yet, as there appeared to be some contradiction in some of the texts of these laws, and as the council were dissatisfied with the whole theory on the subject, thinking it gave rise to unnecessary and embarrassing subtleties and distinctions, it was thought that the article proposed would simplify the matter, and make it more intelligible. Discussions of the Civil Code, 2 vol. 457.
    M. Tronchet, one of the council, observed, "on a voulu également écarter les subtilités du droit Romain, car il est ridicule de vendre la chose d’autrui.” Whether the council have attained the object of their wishes by the article in question, and whether they have not increased rather than diminished the embarrassments which existed under the ancient laws, may well be doubted. However this may be, one thing I think is evident, which is, that in changing the theory, they did not intend to change the practical rules of the ancient laws. When those laws say, that the sale of the thing of another is valid, the expression is used, as I have before shown, in reference to the obligations between the parties. As between them the sale was considered valid, it followed as a consequence from the theory, that it gave rise to the obligations of warranty. It bound the vendor to delivery, and warranty. It compelled the vendee to pay the price, according to the stipulations contained in the contract. It was, indeed, the basis of all the obligations between the parties. There was, to be sure, one case in which the ancient system regarded the sale as null, even between the parties; and that was, when the purchaser knew that the thing sold did not belong to the vendor. The sale was then pronounced simply void, and, of course, could give rise to no action on the warranty.—The vendee might probably have recovered the price, alleging it to have been paid without consideration, but would not have been entitled to damages.
    Now let us consider the consequences of our own legislation. The Napoleon and our Code declare, that the sale of the thing of another is null. But they go on to provide that, notwithstanding this nullity, it may give rise to damages “ when the buyer knew not that said thing belonged to another person.” This is the same as if they had declared that, though null for one purpose, it is valid for another. It is null, in fact, in regard to the owner of the thing sold. It can have no possible effect upon his rights. He may bring, suit against the purchaser, and the latter cannot avail himself of a sale from one having no right to sell. But in regard to the seller, the case is different. He has entered into certain obligations, which he must be bound by. Among the chief of these, are delivery and warranty.—Civil Code, 348, art. 24.—When our code calls such sales null, it speaks in reference to the owner of the thing. When the Roman law calls them valid, the expression is used in reference to the parties. Our law, makes the vendor liable to damages in case of eviction. The Roman law did the same. But then there is this difference, that in the Roman law, this right to damages was a theoretical consequence, resulting from the breach of a valid contract; whereas, in our Code, the contract is called null, but damages are expressly given by statutory provision, and without regard to theoretical consistency. Ours is the Roman law, without its theory. Like the Roman law, it takes away all right to damages when the vendee knew, that the thing sold did not belong to the vendor; and like it, probably it might in the last case, give an action to recover the price, as being paid without consideration. No change has, therefore, as I conceive, been produced by the adoption of the Napoleon, or our own Code, in regard to the practical effects of the contract of sale. I conceive, that these contracts still give rise to the same obligations between the parties, are to be carried into execution in the same way, are subject to the same limitations, and restrictions, as prevailed in the Roman laws, and are protected by the same sanctions. Indeed, how is it possible to call these contracts absolutely, and to all intents and purposes, null; speaking in reference to the parties, when they are yet, as they were formerly, the basis of all the obligations between those parties? What does the vendee resort to for his recourse, in case of eviction? Is it not the warranty contained in the contract? How could he, with propriety, lay his case before a court, except by referring to this contract? What could he complain of? Is it not that the vendor, by the contract of sale, undertook to warrant him against eviction, and that in violation of this promise, he has suffered him to be evicted? And, I should he glad to know, how a man can be liable to damages, for not observing a contract which is null; that is, which is the same as if it did not exist ? If the breach of a contract can produce damages, I should suppose it was sufficient proof that it could not be null; certainly, with regard to those against and in favour of whom it might produce damages. The contract may, with perfect propriety, be called null, in regard to the owner of the thing sold; because, in regard to him, it can produce no possible effects. But in respect to the parties, the case is widely different. The law does not, with regard to them, consider the contract of sale the same, as if it did not exist. The plaintiff himself must admit, that, as to the seller, it produces the obligations of delivery and warranty—Civil Code, 348, art. 24;—and as to the buyer, the obligation of paying the price—Ibid. 360, art. 82—The law could not intend to say, that these obligations only exist, when the thing sold really belonged to the vendor; because, in that case, there never would be occasion for one of these obligations, that of warranty against eviction. The vendor warrants against legal evictions, not illegal ones; and if, at the time of the sale, he was the real owner of the thing sold, it is obvious there could be no legal eviction. The vendee being possessed of the vendor’s title, and that being a good one, as would be the case if the vendor were the real owner at the time of the sale, it is plain that the vendee could never be evicted by a title better than his own; and consequently, could never be legally evicted. It is only when the vendor is not the real owner of the thing sold; and consequently, when he sells the thing of another, that there is any possible occasion for the obligation of warranty. It is only in that very case, and in no other, that the law has given rise to the obligation of warranty, and to an action for the breach of it.
    
      I have dwelt somewhat at length upon this point, because the article 1599 of the Napoleon Code has produced a decision in one of the provincial courts of France, which is absolutely at variance with the ancient laws, and which is justified, or attempted to be justified, by a supposed change in the law, occasioned by that article. The case I allude to, is one decided by the appellate court of Rions, cited from a work, entitled 18 “Jurisprudence du Code Civil," 169. The decision took place in 1810, and the opinion of the inferior tribunal was reversed. It will be seen, however, that it was a case of the first impression; and that in the reasoning of the judges, there is no reference to authorities; no examination of the ancient laws. The editor, in a note at the head of the case, remarks, that there is another decision reported in the 15th vol. of the same work, 139, “ qui est basée sur d'autres principes que ceux qui ont été adoptes dans l'espéce suivante, et qui nous paroissent préférables.” As the 15th vol. is not now within my reach, I am obliged to content myself with the above reference to it.—I do not deny that the opinion of the court of Rions supports the pretensions of the plaintiffs. But I will oppose to the authority of that case, another reported in the 17th vol. of the same work, 437—8—9.—A suit was brought by the purchaser to annul a sale, made to him by a natural tutor, of real property belonging to his ward, and which had been sold by the tutor, without pursuing any of the formalities required by law for the validity of such sales. The cause having been decided against the plaintiff in the court below, an appeal was taken to the appellate court of Turin, where the judgment below was confirmed. It was contended in that case, as it is in this, that the vendor had sold the thing of another; that the sale was in contravention of the article 1599 of the Napoleon Code, and was therefore void. The court had occasion particularly to examine the ancient laws, to inquire how far those laws on the subject of sales had been altered by the Napoleon Code, and whether any radical change had been produced by it. Their opinion may pretty clearly be gathered from the following observation—page 439. “ Ce n’est pas apporter des limitations a l'article 1599, et moins encore le rendre illusoire, que de classifier le contrat dont il s'agit sous sa vraie nature et de le demontrer etranger á ces dispositions, mais c’est eviter d'étendre á 
      
      des contrats expressément permis et valables, une loi prohibitive uniquement dirigée á éliminer les fraudes et les abus, qui pouvaient naítre de l'ambiguité et de la mauvaise interpretation de la loi Romaine."
    
    It will perhaps be said, that the object in the contestation in the two cases was different—that the case of Turin relates to minors' property, and that of Rions to dotal. But what difference, I would ask, can that make? In the case of dotal property the nullity was claimed, not because the property was dotal, but because it did not belong to the vendor. It is true, the husband cannot in general sell dotal property; but it is equally true, that the tutor cannot sell the real property of the minor, though the judge may cause it to be sold on observing certain formalities. If then the tutor sells the real estate of his ward, what is it but to sell property which does not belong to him? Does the husband any thing more when he sells dotal property? It is said, the sale of dotal property is prohibited, except in certain cases and undercertain circumstances, and that this prohibition imports nullity. So also is the sale of minor’s real property prohibited, except in certain cases, and under certain circumstances, and then is only permitted with certain formalities. And does not this prohibition with regard to minor’s property, equally import nullity? The truth is, the difference in these two decisions did not arise from any supposed contrariety in essential facts; they were both decided upon principles, which are general, and which have equal application to the one case as to the other; they are opposed to each other in spirit and in principle; they cannot be reconciled; they cannot stand together. If the court of Rions was right, the court of Turin was wrong. If, as a general principle, made sacramental by the Napoleon and our own code, the sale of a thing belonging to another person is null, ipso facto, de plein droit, as is contended in behalf of the plaintiffs, then the sale of minor's property by a tutor, not authorized, would be as void as the sale of dotal property by a husband not authorized. Yet this court has lately decided in the case of Melançon's heirs vs. Duhamel in conformity with the opinion given by the court of Turin, that the nullity of the sale, in regard to minor’s property, is merely relative, and that it cannot be claimed by the purchaser.
    The plaintiffs’ counsel have quoted the Pandectes Françoises, 12 vol. 268. But this authority is merely the opinion, it may be, of a distinguished civilian, given, however, hastily in the progress of an extensive work, and without, as it appears, any particular examination of authorities.
    It will not be contended by me, and I presume not by the counsel on the other side, that the opinions and decisions of foreign tribunals and jurists are binding authority upon this court. When, however, they relate to mere questions of customary law, and are uniform, they ought unquestionably to have some influence as mere precedent and authority. But the present is a question which relates to a written Code, recent in its origin, and of which this court is probably as able to give a construction as the provincial courts of France. This court will, no doubt, listen at all times with great respect to the opinions of eminent jurists; and, had the opinions and decisions quoted been uniform, they would certainly have been entitled to great weight. But being, as I have shown, contradictory, it is for the court to say which of them shall be followed. It is for this court to decide, whether a vendee, being put in possession of the thing sold to him, remaining undisturbed in that possession by any adverse claim, can himself assert the nullity of the sale, on pretence that the vendor had no title.—This is altogether a new question in this country. The present is, I believe, the first suit which has depended for its success wholly upon the establishment of such a principle. In this view of it, the subject becomes important. By way of defence, want of title has been frequently urged as cause for demanding security, and for delaying payment until security should be given; but never for annulling the contract. Observe the progress of these pretensions—they commence with the well known principle recognised by this court, that the defendant may delay payment, when disturbed by a suit actually brought, until security shall be given. 7 Martin, 223. Civ. Code, 360, art. 85. Poth. Control de Vente, n. 282. Dig. lib. 18, tit. 6, l. 18 s. 1.
    Pushing the principle a little farther, it is pretended, that security may be demanded, not only when the vendee is disturbed by a suit actually brought, but also when he has reasons to apprehend a future disturbance. And stretching the doctrine to its utmost limits, reasons for apprehending a future disturbance on account of a defect in the vendor’s title, give a right not merely to demand security, for that had been offered in the present case, but to annul the sale. Nay, it is pretended that this nullity is so absolute, that it cannot be effaced even by the subsequent perfection of the title. And this is the point to which these pretensions have arrived in this suit.
    The term “ newfangled,” could never be applied with more perfect propriety than to these pretensions; for they are, I believe, contrary to all the laws of all countries. They are certainly contrary to the Roman law. That law had said, as this court has, that security may be demanded when the vendee is disquieted by a suit actually brought. The expression is “quæstione mota” and I have the authority of this court for saying, that it means a “judicial investigation of title.” That law had said in express terms, as I am persuaded this court will say, that the purchaser in possession cannot, until evicted, prosecute the vendor, on pretence that the thing sold did not belong to him. Code, lib. 8, tit. 45, l. 3.—The opinion of Pothier is to the same effect: “ Quand meme l'acheteur découvriroit que le vendeur n'était pas propriétaire de la chose qu'il luí 
      
      a vendue, et conséquement qu'il ne lui en a pas transfére la propriété, cet acheteur, tant qu'il ne sera inquiété dans sa possession, ne pourra pas pour cela pretendre que le vendeur n'a pas rempli son obligation.” Contrat de Vente—preliminary article.
    But the ancient laws are said to be repealed by the Napoleon Code, and the decision of the court of Rions is quoted as evidence of the repeal. If that court had referred to these laws, had compared them with the article 1599 of the Napoleon Code, had alleged a repugnance betwen them and this article, and from them had inferred the repeal, the decision would have been entitled to more consideration than it is. But instead of that, their opinion is built wholly upon the Code. We see nothing which indicates the least knowledge of the former laws. No inquiry is made into the motives which led to the adoption of the article in question. The principle assumed by the court, and which forms the basis of their reasoning, is, that the sale of the thing of another is absolutely void, even between the parties; and, therefore, the vendor in possession, though undisturbed, may assert its nullity, by original action. So far from expressly saying that these ancient laws had been repealed by the Code, they do not appear to have known of their existence. And who can say what effect they might have produced upon, that court, had they been quoted and considered ? By the court of Turin, they were considered together, with the motives for adopting the article 1599, which were, says the court, “ à éliminer les fraudes et les abus qui pouvaient naître de Pambiguité et de la mauvaise interpretation de la loi Romaine." Had the Roman law been free from ambiguity and well understood, there would have been no need of the article. It was intended to correct, not to repeal the Roman law. It would be a pernicious and absurd application of this corrective measure, to make it a pretence for introducing all the untried, but obvious evils of a new system; a system, too, not recommended by any very evident advantages, but attended with certain and inevitable mischiefs, such as bad faith promoted, litigation encouraged, and all those ruinous consequences, which cannot be enumerated, but which always result from sudden changes.
    What shows, pretty conclusively to my mind, that the law does not contemplate a proceeding, such as is resorted to in this suit, is, that it has provided no rules for it. Within what time are such actions prescribed? How long may the vendee possess before he loses the right of bringing such a suit? What damages, if any, is he entitled to? What is to be done with the rents and profits? No answer could, at present, be given to these questions, because the law would, as yet, have furnished no rules on the subject.
    On the ancient plan, however, we have a complete system ready furnished with details extending to every possible exigency. Thus, when the vendor with no bad faith, sells the thing of another, and the vendee is put in possession, he has no recourse until evicted.—Prescription does not begin to run against the action on the warranty, except from eviction. Rules are given for regulating the damages. The rents and profits belong to the vendee until he has judicial notice of a better title.—As long, however, as possession is not given, the sale is considered so incomplete that the vendee is permitted to claim its nullity, if he discovers a defect in the title. Code, lib. 8, tit. 45. lex. 5.
    Even after delivery, the vendee may, before eviction, assert the nullity of the sale, if he can establish fraud in the vendor. But then the fraud must be real, not constructive merely. It must amount to what, in law, is called malum dolum. Dig. lib. 19, tit. 1, lex 30, s. 1.
    If I mistake not, also prescription is acquired against these actions, founded upon fraud, in one year. It appears to me, that this court will require something more satisfactory, than what is to be found in the Napoleon or our Code, before they will consent to set aside the whole of this ancient system, as venerable for its antiquity as it is for the justice of its provisions.
    The gentlemen urge, that they are within the provisions of the ancient laws, as they have alleged fraud in this case. I answer, that it must be proved also. Fraud, I admit, will vitiate any thing. But it is one thing to allege, and a quite different thing to prove it. It is true, the plaintiff has alleged it abundantly in his petition, but has not attempted to produce any proof in support of these allegations.—He seems to have supposed that this court, in violation of a known maxim of the law, will presume its existence, and that, too, in the face of evidence to the contrary.
    
      Dolum malum is thus defined, “ machinatio
      
      nem quandam alterius decipiendi causa, cum aliud simulatur et aliud agitur.” Dig. lib. 4, tit. 3, lex 1, s. 2. Now I ask the court, if there is any thing in the conduct of the defendant in this case which comes within the above definition. Where is to be found any contrivance to cheat? The transaction took place in the neighbourhood where the plaintiff resides, where he has always resided. He knew the parties interested, and was acquainted with the land. He had always lived within a stone’s throw of both. He knew perfectly well, that Eyssaline derived his title to the land, in part, from his wife. He supposed, as did Eyssaline, that this title authorized the sale. So far from there being any machinationem decipiendi causa on the part of the defendant, he did not so much as solicit the bargain. It was the plaintiff who sought it, and the evidence shows how strict the defendant was in adhering to his original terms, a point upon which he would have been much less punctilious had he been disposed to obtain, by dishonest means, the price of a thing to which he knew he had no right.
    Once more, and I quit this branch of the subject. This case does not come within the hypothesis stated by the plaintiff’s counsel. One half of the thing sold, confessedly belonged to the defendant at the time of the sale. It was not, therefore, on any supposition, the sale of a thing wholly belonging to another person. But it is said, if the vendee loses part of the thing sold, owing to a defect in the title, he may cause the sale to be cancelled for the whole. Civ. Code, 354, art. 60. The answer is, that he has, as yet, lost no part of the thing sold to him. The law has only given this remedy in case the vendee shall be evicted of part; not merely in case he shall be in danger of eviction. And this furnishes an additional reason for believing, that the law never contemplated such an action as this; otherwise it would have made some provision for it. The law was provided a remedy for a certain injury. That injury is uniformly described in the same way. It is called eviction, a term which relates to possession, not to title merely. It is reasonable to presume, therefore, that so long as that possession remains undisturbed there can be no occasion for the remedy.
    It is contended by the defendant, that his title now being complete, the plaintiff has no longer any ground of complaint. In opposition to this matter of defence it is said, that the proceedings of the meeting of the family are not legal, because the meeting was composed of friends, and not relatives. It is pretended, that the record shows that there were relatives which were not called. In reply, I say, that the process-verbal of the meeting states, that friends were called for the want of relatives; and that the court will not indulge presumptions against the record. I say also, that in point of fact there were not relatives within the parish in which the minors are domiciliated. But even if objections could be alleged against the validity of these proceedings, they cannot affect the sale to Eyssaline, as that sale was made by licitation, and for purposes of partition. It appears to have been ordered by the judge, on sufficient proof that the minors’ interest in the land could not otherwise be separated from that of their co-proprietors; and in such case, a meeting of family is not necessary. 3 Mart. Dig. 134, n. 21.—Even dower property may be sold, situated as this was.—Civil Code, 330, art. 40.
    It is said again, that there is no proof that this sale has ever been demanded by Eyssaline or his wife. But sufficient proof of that fact may be found in the process-verbal of the sale, which recites, that it was made at the request, among others, of Madame Eyssaline, authorized by her husband, and also of Joseph Eyssaline; which process-verbal is signed at the bottom by both. The same fact is also stated in the process-verbal of the meeting of family, and forms one of the motives for recommending the sale in regard to the minors. Lastly, it is contended, that admitting the title now to be perfect, yet, as it was not so at the date of the sale, the plaintiff ought not to be compelled to keep the land. In this pretension the plaintiff has unconsciously betrayed the true motive for instituting this suit. It was done that he might not be compelled to keep the land. Had he appeared as a humble supplicant for justice, presenting a case of simplicity over-reached, and had he shown that he was still liable to lose the object of his purchase by a better outstanding title, he would certainly have been entitled to commisseration, if not to relief. But instead of that, he exhibits himself as an adventurer in a law suit, struggling to break loose from engagements, voluntarily and freely contracted, and with nothing to excuse him for his meditated bad faith. How perverse must be the disposition of that man, who complains against the enforcing of a contract, according to his own original intentions in entering into it. But the law is resorted to again, and the plaintiff seems to expect that it will aid, not in preventing a violation of the contract, but in promoting it. The famous case decided by the court of Rions is again triumphantly quoted upon me. I must confess that that extraordinary case goes the full length of supporting the plaintiff in his pretensions. In opposition, however, to the authority of that case, I refer the court to a work, entitled "Le Droit Romaine," 5 vol. 279. “ Si, avant que le control soil déclaré nul, le vendeur acquérait la chose qu'il a livrée, l'acheteur pourrait il encore le faire annuler ? Je ne le crois pas. L'obligation du vendeur se trouve completement remplie. L'acheteur acquier la propriété, puisque le consentement des deux parties subsiste sur l'objet du contrat, et que celuici a reçu son entière exécution. This opinion is in conformity with the Roman law. ff. 21-2, 57.
    
   Mathews, J.

delivered the opinion of the court. This is an action for the rescission of the sale of a tract of land, on the ground that the vendor had sold the thing of another; that the sale was fraudulent; and that the properly sold was dotal.

There was judgment for the defendant, and the plaintiff appealed.

The important facts of the case are the following. In March, 1820, the defendant sold to the plaintiff Bonin, a tract of land of 14⅔ arpens, front on the Teche. In the month of December, of the same year, having discovered that he had purchased what did not belong to his vendor, he gave public notice of his intention to procure a rescission of the sale, and restitution of the notes given by him for the price, which were endorsed by the other plaintiff; and for this purpose commenced the present suit, on the 5th of November, 1821, as appears by service of the citation.

A few days after this public notice, but long previous to the institution of this action, a family meeting, composed of the friends of the minors Dumartrais, was called, and was of opinion, that a tract of land mentioned in its proceedings could not be conveniently partaken by division in kind; and that, therefore, it was proper to sell it for cash, and divide the price. The under tutor did not intervene. The judge of probates homologated the proceedings, and the 21st of March, 1821, the land was adjudged to the plaintiff for 6000 dollars.

At the time of the sale, as above stated, the 14⅔ arpens sold were two undivided parts of a tract of 22 arpens, owned in equal portions by C. Gravenbert, the minors Dumartrais, in right of P. Gravenbert their mother, and T. F. Gravenbert, wife of the defendant, being a part of her dower.

It further appears by the evidence in the case, that C. Gravenbert sold his undivided third part of said 22 arpens to the defendant by act under private signature, previous to the sale made to the plaintiff of the two thirds by metes and bounds, as expressed in the deed of conveyance executed in pursuance of the latter sale.

From these facts it appears to us, that three principal questions of law arise in the cause.

1. Has a vendee of dotal property, sold by the husband whilst he remains in undisturbed possession, a right to claim a rescission of the sale and restitution of the price, on the ground of the contract being null, either absolutely or relatively, i. e. void or voidable?

2. Was the sale, made in pursuance of the family meeting, such as to transfer the property to the defendant?

3. Can a husband who sells the dotal property of his wife, and afterwards acquires an absolute right to it, avail himself of such posterior right, in opposition to the vendee’s claim, for a rescission of the contract of sale, when the complete title has been obtained previous to instituting suit for rescission?

In examining these questions, we will first consider the two last; for, should their solution be found favourable to the appellee, it will be unnecessary to answer the first.

Previous to the act of 1809, it was made the duty of tutors, under certain formalities prescribed by law, to proceed to the sale of the moveable and immoveable property of their wards. Civil Code, 68, art. 56. The law on this subject was altered in relation to uncultivated lands, &c. by the act above cited. Martin’s Digest, p. 128. In the same act it is provided, that the previous rules there established, and also those of the Code “ which prohibit the sale of the estate of minors in certain cases, or to authorize the sale only if it should amount to the estimated value of said estate, shall not be construed to affect such sales as are forced upon minors, or when minors have an estate in common with other persons who apply for a division or said estate, when such division cannot take place but by licitation,”&c.

In the case now under consideration, it is true that the partition of the property, common to the minors Dumatrais and their co-proprietors, does not, in the first instance, seem to have been solicited by the latter; but all parties interested, the minors by their father and natural tutor, and the others by themselves, appear to have acquiesced in the necessity of partition by licitation, as well as in all other proceedings by which the sale was made by the parish judge, as evidenced by their signatures to the process-verbal of said proceeding; which, in our opinion, is equivalent to an original expression of their wish to cause legal partition of the common property by petitioning the judge to that effect. We therefore conclude, that the sale was made in such manner as to transfer the property to the defendant, who became the purchaser. Part of the undivided property being dotal, did not exempt it from subjection to sale in the present case. Civil Code, 330, art. 40.

Before entering into any discussion of the third question, it is proper to observe, that we are of opinion that the evidence of the cause does not establish the fact of fraud or dolum malum against the appellee.

Decisions of French tribunals, and dictums of jurists are resorted to and relied on in support of both the affirmative and negative of this question. The case cited from the 18th vol. of the work, entitled “ Jurisprudence du Code Civil," as decided by the court of Rions, establishes two principles much opposed to the pretensions of the defendant, viz. that the sale of dotal property is null, and that acquisition of title, subsequent to the institution of an action to rescind the sale, will not cure such nullity. Were we disposed to give full force to the principles recognised by this decision, as being rendered on articles of the Napoleon Code similar to those of our Code, invoked by the plaintiffs, but which we believe to be at least doubtful as to correctness, still there is a clear distinction in the present case from that cited. There it seems that suit had been commenced to annul the sale before the defendant acquired a good title to the property sold: here the title was acquired before suit commenced. This circumstance places the appellee’s cause in a situation more favourable to his pretensions than that of a seller in the case put by Le Clereq, in his work, entitled "Droit Romain," &c., in vol. 5. p. 279; wherein he supposes the case of the purchaser being ignorant that he bought the thing of another, which was delivered to him by the seller; and admits, that the buyer might have the contract declared null, on restoring the thing, &c. But if, before the contract be annulled by competent authority, the seller should acquire the thing which he had delivered, it is the opinion of the author, that the purchaser would then not have power to cause the sale to be annulled; because every obligation on the part of the vendor would be fulfilled: the purchaser acquires the property in the thing sold as well as the possession; and, consequently, the contract stands fully executed. The principle established by the latter part of the case as stated, we are inclined to think correct; evidently so, in a case where no action for rescission has been commenced.

Considering the sale made by the parish judge, in pursuance of the representation of the family meeting, with the consent of all the co-proprietors, as good and translative of property; and that, by it, the appellee acquired a complete title to the land which he had sold to the appellant, before the institution of the present suit; we are of opinion, that there is no error in the judgment of the district court.

It is therefore ordered, adjudged and decreed, that it be affirmed with costs. 
      
       Porter, J. did not join in the opinion, having been of counsel in the cause.
     