
    No. 7008.
    J. Mat. Wells, Jr., Executor, vs. F. M. and Ida Wells.
    One who holds as owner peaceable, public, and uninterrupted possession for ten years of an immovable which he has acquired from one whom ho honestly believed to be the real owner, under a title translative of the property, acquires by prescription the legal ownership of the immovable.
    Whoever alleges bad faith in the possessor of property who claims a title to it by prescription, must prove the bad faith.
    The universal legatee of a succession-who has accepted the same, and who has also qualified as exocutrix, may, in her capacity as owner, make a valid sale of the property of the succession without any order of court authorizing her to act.
    APPEAL from the Ninth Judicial District Court, parish of Rapides. Hunter, Judge ad hoc.
    
    
      R. J. Bowman for plaintiff and appellant.
    
      James G. White for defendants and appellees.
   The opinion of the court was delivered on the original hearing by Spencer, J., and on the rehearing by Marr, J.

Spencer, J.

Walter O. Winn died in 1860, without ascendants or descendants. By olographic will he left his wife, Mary E. Winn, universal heir and legatee, and appointed her executrix. This will was duly probated, and she qualified as executrix. His estate was worth about half a million of dollars, and his debts about $120,000. The widow took possession of the estate, and seems to have dealt with it pretty much as her own from the death of her husband in 1860 to 1870, when her attorney filed what purports to be an account of her administration.

In the fall of 1862 she sold to E. M. and Jefferson Wells, for $20,000 cash in Confederate money, one fourth interest in the Lodi plantation in Rapides parish. The sale was one by public act, and duly recorded, and the purchaser went into immediate possession. In 1864 E. M. and Jeff. Wells transferred the property so acquired to their wives, the defendants, as a dation en paiement, by public act. In 1874 the public buildings and offices of that parish were destroyed by fire, and we have only secondary evidence of the contents and nature of this title from Mrs. Winn to the vendees aforesaid. The present suit is brought by the plaintiff as public administrator and dative executor of Walter O. Winn, the widow having been destituted by decree of court. The object of the suit is to recover and restore to the estate of Winn the fourth of said plantation so sold, and to annul the act of sale thereof, as having been made by the executrix without authority of law.

The defense is that Mrs. Winn was the universal heir and legatee; that she accepted the succession unconditionally, disposed of its effects as owner, and that thereby the estate of Winn ceased to exist and was lost by confusion in that of the heir. Finally, the defendants plead the prescription of ten years.

Under the view we have taken of the case it will be unnecessary to decide the question whether a sole heir or universal legatee, who has been named, appointed, and qualified as executor, can by extra judicial acts of unconditional heirship, and without having previously provoked his discharge as executor, terminate the existence of the succession of which he is heir and executor.

We think that under the proofs in this record the plea of prescription must prevail. In determining this question it is matter of no moment whether Mrs. Winn was or not owner in law or fact; nor whether in law or fact she had a right to sell this property. If prescription could only be pleaded in favor of a party who had acquired from the true owner, or one having legal authority to sell, it would be a very useless right. The very object of this prescription is to quiet the titles of those who may have acquired from persons not owners, and having no right to sell; “ as happens to him,” says article 3451, O. C., who buys a thing which he supposes to belong to the person selling it to him, but which in fact belongs to another.” Again, article 3450 says; “ By the term just title in cases of prescription we do not understand that which the possessor may have derived from the real owner, for then no prescription would be necessary, but a title which the possessor may have received from any person whom he honestly believed to be the real owner, provided the title were such as to transfer the property.” Article 3485 : “ By the phrase transfer the property we understand not such a title as shall have really transferred the property, but a title which by its nature would have been sufficient to transfer the property, provided it had been derived from the real owner, such as a sale, exchange, etc.” So that the questions in this case are not whether Mrs. Winn was the owner, and had the right to sell the property, but whether the purchasers at the time of buying believed that she was owner, and whether the attempted transfer was sufficient in terms and of nature to transfer the property had it emanated from the true owner ? If so, and if the defendants have possessed as owners under such transfer, peaceably, publicly, continuously, and unequivocally, for ten years before this suit was brought, the prescriptive title is complete. See O. C. 3453.

There is no doubt that Mrs. Winn did in 1862, by public act duly recorded, sell and deliver to the defendants, E. M. and J. Wells, the land in controversy, at the price of §20,000 cash. Both vendees swear that they bona fide believed her to be absolute owner, and knew nothing of her holding the position as executrix of the deceased husband, of whom she was heir. That she treated the property as her own, and sold it to them as her own, and that they and their vendees have had peaceable, public, continuous possession as owners ever since. Their evidence is, we think, in the main corroborated by that of Judge Ryan, who has for years, in fact since Winn’s death, been the attorney of the succession. There is no proof to the contrary of these statements. There is no evidence to show that E. M. and J. Wells at the time of their purchase knew that Mrs. Winn was executrix. It matters not what they knew afterward, since “ it is sufficient if possession has commenced in good faith.” C. C. 3448. “Good faith is always presumed in matters of prescription ; and he who alleges bad faith in the possessor must prove it.” O. 0. 3447.

Citations were issued and served in this suit in April, 1876, more than thirteen years after the date of the sale in question. The judgment below maintained the defendants’ title, and is, we think, correct.

• It is therefore ordered and decreed that the judgment appealed from be affirmed with costs.

The Chief Justice declined taking any part in the decision of this cause.

On Rehearing.

Marr, J.

The testimony in the record satisfied us that the title under which defendants hold the real property in question was protected by the prescription of ten years ; and we affirmed the judgment of the district court in their favor, on that ground alone, pretermitting the expression of any opinion as to the right of Mrs. Winn, as executrix and universal legatee under the will of her husband, to dispose of the property belonging to his succession by private sale.

It seems that we were in error as to date of the death of Walter O. Winn, which actually occurred in 1861, instead of 1860. This is not material, because the sale under which defendants claim was made in 1862 ; and they were cited in this casein April, 1876. We do not propose to re-examine the question of prescription ; because no suggestion has been made which induces us to doubt the good faith of the authors of the title of defendants : and for the additional reason that we think their title is not dependent on the lapse of time.

The will on which the rights of Mrs. Winn depend is as follows :

“ I, Walter O. Winn, make this my last will and testament; I appoint my beloved wife, Mary E. Winn, my executrix and universal legatee. I leave to her all the property, real and personal, of which I may die possessed, or own.”

There were no forced heirs, and no particular legatees ; and by the t-n’ins of the Civil Code, in such case “the universal legatee by the death of the testator is seized of right of the effects of the succession, without being bound to demand the delivery thereof.” Article 1609’ (1602).

It is true one can not be held as heir, whether legal, ab intestate? or instituted by will, without having accepted that quality; but it is equally true that this acceptance may be either express or tacit. It is equally obligatory and effectual in the one case as in the other.

“ It is express when the heir assumes the quality of heir in an unqualified manner, in some authentic or private instrument, or in some judicial proceeding.

“ It is tacit when some act is done by the heir which necessarily supposes his intention to accept, and which he would have no right to do but in his quality of heir.” B. O. 0. article 988.

Shortly after the death of her husband, Mrs. Winn disposed of certain slaves of the succession by exchanging them for others. As heir, universal legatee, she had a perfect right to do this; as executrix, she could have done no such thing. In 1862 she sold the real property in question by notarial act to the authors of the title of defendants. As heir, universal legatee, absolute owner under the will, she had a perfect right, full power to do this ; as executrix, she had no such power. During the war Mrs. Winn removed from Bapides parish to the State of Texas, with the slaves and movable effects of the succession, and did not return to Louisiana until after the close of the war. As executrix, she could not have been permitted to take any part of the property beyond the limits of the jurisdiction of the probate court, certainly not beyond the limits of the State ; as heir, owner, she could do what she pleased with her property.

On the return of Mrs. Winn from Texas suits were brought against-her, in one of which, at least, that of Gasquet, she was charged as heir, universal legatee, and as having accepted, purely and simply; and in that quality judgment was rendered against her. This was the acceptance of the quality of heir in a judicial proceeding. In 1867 Mrs. Winn made a donation to her mother of a plantation which belonged to the succession ; and about that time she married, and removed to another State with her husband.

In his reasons for judgment, the judge ad hoc states that the only voluntary appearance of Mrs. Winn, and acknowledgment of her capacity as executrix, was in 1870, when a petition was presented by her, or in her behalf, for the sale of certain lands of the succession in Madison parish.

In 1869 her attorneys filed a tableau of debts, at the instance of a creditor ; and in 1874 proceedings were instituted to destitute her. She was destituted of her office as executrix by decree of this court in 1875, upon the grounds that she had sold the property in question in the year 1862 ; and that she had ceased to be a resident of the State. She was represented in that case by a curator ad hoc; and it does not appear from the report that the court considered or passed upon the fact that, she was universal legatee.

The acts of Mrs. Winn are not equivocal; but when we consider that the succession of her husband was estimated at over $500,000, and the debts amounted to only about $125,000, there can be no doubt as to her intention. All her dealing with this succession shows, beyond doubt, that she had unqualifiedly, in authentic acts, and in judicial proceedings, accepted the quality of heir; and she could not have resisted the demand of any creditor against her personally as heir.

In Duplessis vs. White, 6 A. 514, the executrix, who was also sole heir of the testator, sold real property of the succession at private sale. The court said: “ Nothing prevented her from accepting the succession purely and simply, and at once taking possession as heir. The fact of her selling the property in that capacity amounts to such an acceptance ; and the mention in the act that she was executrix was immaterial, and affected neither her rights nor her obligations as heir, pure and simple.”

The case of Bird vs. Succession of Jones, 5 A. 643, is wholly different. By her will Mrs. Jones directed: 1. That all her just debts be paid, “ and if any thing be left, I desire it to be disposed of as follows: 2. I give and bequeath to Boswell Henderson Jones all the property which by law I have a right to dispose of, and make him my universal legatee. 3. I appoint Boswell Henderson Jones my executor * * * and give him seizin of my estate; and request him to see that the intentions herein expressed be carried out.” -

Jones qualified, and he compromised with the forced heirs. One of his creditors sought to • subject the property of the succession to the payment of the debt. Jones answered that he had taken possession as executor, and held the property with the intention of paying the debts, and well knowing that only the residue after such payment belongs to him. ■

It is clear that he did not intend to accept as universal legatee; that, he intended to administer as executor, and to pay the debts of the succession as he was charged by the will to do ; and that he could not have acquired any right or title as universal legatee except to such residuum as might be left after paying the debts of the succession, the first charge imposed upon him by the will, the injunction with which it closes.

It is therefore ordered that our decree heretofore pronounced in ■ this case on the seventh March, 1878, remain undisturbed; and it is-affirmed.

The Chief Justice recuses himself.  