
    Baptiste Beaulieu, f. m. c., v. J. Ternoir, f. m. c., et al.
    A residuary donation inter vivos, made to certain persons therein named, is null, because it contains a “fi&ei commissumbut this nullity does not affect the title of the original donee, which remains good to the property donated. The entire donation is null only in cases of substitution.
    The French text of the G. C. 1507, evidently expresses the intention of the Legislature. The English text, taken literally, is without meaning.
    Marriage, like other facts, may be prove,d by any species of evidence not prohibited by law, and which does not pre-suppose a higher species of evidence within the power of the party.
    APPEAL from .the Fifth District Court of New Orleans, Buchanan, J. The questions involved in this case arose out of the following act of donation: “ Par devant Philippe Pédescianx, notaire public, pour la ville et paroisse de la Nouvelle Orleans, et en présence des témoins ci-aprés nomnjés, fut présent Baptiste Beaulieu homme d.e couleur et libre, demeurant en cette vijle, lequel vpnlant donner des preuves de son anjitié á Eulalie Bucloslange (mulatresse libre,) filie naturelle de Philippe Bucloslange, lui apar les presentes fait donation entre vifs et irrévocabie, ce qui a été accepté par la dite Eulalie Bucloslange, á ce présente et assistée de son pére naturel ci-dessus denominé, aussi comparant, d’un demi terrain situé au faubourg de la Course, rue des religieuses, ayant trente pieds de face sur cent vingt pieds de profondejir, faisant partie du terrain dénommé par le no. huit, et attenant au terrain numero sept dans l’ilet no. dix, lui appartenant au donateur, pour l’avoir acheté du sieur Philippe Bucloslange par acte passé devant le noíaire soussigné le qninze Avril dernier.
    *‘Pour par la donataire jouir, faire et disposer comroe de chose lui appartenant en toute propriété des maintenant et á. toujours.
    “ A cet effet le donateur met et subroge la donataire dans tous les droits de propriété qu’il á et peut avoir sur le demi terrain ci-dessus, voulant qu’elle en soit saisie et revétue.
    
      “ Cette donation est faite sous la condition expresse sans laquelle ces présentes n’auraient pas eu lieu, que si la donataire venait á décéder sans laisser de postérité on sans avoir disposé d’aucune maniere du dit demi terrain, qu’alors Agathe Ducloslange, Mélite Ducloslange, Matliilde Ducloslange, et Leonide Ducloslange, femmes de couleur et libre, deviendront sans qu’il soit nécessaire de remplir aucune formalité, propriétaires du dit demi terrain, et de tout ce qui sera eonstruit dessus.
    “ Fait et passé á la Nouvelle Orleans, le quinze Juillet mil huit ceut dix-neuf, en présence des sieurs Michel Fourcisi et Vincent Bilote, témoins qui ont signé avec les comparans, et le notaire, a l’exception du donateur, qui ne sachant signer a fait sa marque ordinaire. Apres lecture la donataire a déclaré ne savoir signer.
    “ (Signé,) Baptiste Beaulieu, ¡xj sa marque. Eulalie Ducloslange, sa marque. Philippe Ducloslange. Fourcisy V. Bilote. Phi. Pedesclaux, Notaire Public.
    “ Pour copie conforme a l’original resté en mon étude pour recours.
    “[L. S.] (Signé,) Louis T. Caire, Notaire Public.”
    
      M. Grivot and C. Roselius, for plaintiff,
    contended : Jean Baptiste Beaulieu instituted this suit to recover from defendant a lot of ground in the Second Municipality, which he had donated in 1819 to Eulalie Ducloslange, with the condition, that should Eulalie die without posterity, or without having disposed of the property, then the donation was made in favor of her sisters. Eulalie died in 1845, without issue, or having disposed of the lot. Her sisters claimed title to the property, under the donation, but w.ere opposed by Boss, who alleged a pretended sale to him, by Eulalie, a few .days previous to her death. Suit was brought against him; the judge decided in their favor; from which judgment he appealed to this court. The decision of this court was, that the clause in the donation under which they claim, being a substitution, or jidei commissure,, prohibited by article 1507 of Civil Code, rendered the donation null, whereupon Beaulieu brought this suit. Beaulieu, the original plaintiff, died in 1848, his son and heir, Sainlville, was, on his motion, made a party to this suit. Defendants took their rule, calling upon him to prove his legitimacy and heirship. By consent, the rule was tried with the merits.
    The judge before whom the cause was tried, gave judgment against him, on the ground that he had not proved his legitimacy. The question is, whether the marriage of Beaulieu and Qharlottine has been sufficiently proved. By the testimony of Joseph Porcé, a cousin, Isidore Honoré, an uncle, and other witnesses, it is shown, that J. B. Beaulieu, in 1820 or 1821, introduced to his friends and relatives, Charlottine as his wife, treated her as such, they were considered as man and wife by all who knew them; that Saintville is the issue of that cohabitation. That they lived as man and wife, up to the time of his death, in 1848. A witness, Moore, for the defendants, corroborates this testimony. None of the witnesses ever doubted they were man and wife.
    This evidence was objected to by defendants, on the ground that in Louisiana, marriage is contracted by written contract, and by written license, and formed better proof of the facts in question. The court overruled the objection, and a bill of exception was taken. This testimony was properly admitted. It is difficult, after the lapse of twenty-eight or thirty years, to procure better proof 'than the cohabitation. There is no law requiring the registry of marriages; Marriage being but a civil contract, the forms required by law are merely for the protection of those who are charged with the celebration of marriages. Cohabitation as man and wife for nearly thirty years supposes the existence of a previous marriage. Such a cohabitation cannot be treated lightly, and children born during that cohabitation, cannot be considered as bastards. No one is presumed to have violated the laws of his country. See Holmes v. Holmes, 6 L. R. 470. 18 L. R. 550. In France, where the records are required to be strictly kept, and the marriages to be registered ; the child claiming as heir, and legitimate child is not required to produce the marriage contract, if both parents are dead, for it is not presumed that he knows the date when, the place where, or the person by whom the ceremony was performed. The only proof required is, the fact of cohabitation as man and wife; their reputation as such; that he was born of that cohabitation, and treated as the legitimate issue. See Duranton verbo Marriage, p. 207, no. 253, vol. 2.
    The judge erred in deciding against the rights of Saintville. In his judgment, he says, it is matter of notoriety that the colored population are tenacious in having the marriage performed facie ecclesiae. The judge pays that class a high compliment, in believing that they entertain a higher regard for the religious solemnity of the marriage than the white population. If it be so, the presumption preponderates in favor of the parties here, for, if they are tenacious, the supposition is, that they did comply with the necessary formality. Whether the marriage was solemnized here cannot be shown. Saintville had no right to doubt the truth of his father and mother’s statements ; and he has established all he was bound to do, to prove his legitimacy, and his right to claim as heir. The defendants offered the testimony of one U. Valentin, taken under a commission, which was objected to, because he was the brother of J. B. Beaulieu, and had a clear and distinct interest in defeating Saintville'’s rights. If Saint-ville failed, he was the ljeir to his brother’s estate. The district judge maintained the objection, and defendant’s excepted thereto.
    On the merits of the cause, the decree of this court in the suit of Mathilde Dueloslange v. Ross, offered together with the whole record of the case, forms the law of this cause. This court declared that the donation contained a substitution, or fidei commissum, and the article 1507 Civil Code, positively declares, that if the act of donation contains such a clause, the donation is null, even in regard to the donee, instituted heir or legatee. If null, the property reverts to the donor or his heirs. Ross cannot then set up title from Eulalie ; she did not nor could not dispose of the property. She never had title. Beaulieu was and is still the owner.
    But if it be considered that she had the colour of a title, she never parted with that title. The pretended act of sale was obtained by Ross and Ternoir through fraud, at a time when she was sick and feeble on her death-bed ; the transactions took place in a dark room; threats were used by Ternoir; Ross aided and assisted; no money was paid for the price of said property. All these facts were proved on trial of Dueloslange v. Ross. Interrogatories propounded to Ross were not answered by him, and were taken as confessed. These interrogatories were full, and he had then the chance of exculpating himself from the charge ; he failed to do so. The whole of this record was offered and received in evidence without objection on the part of defendants. In that case, the district judge decided there was fraud; on the appeal, strenuous efforts were made by Ross to reverse the judgment on that point: this court did not consider the argument thereon, and it certainly cannot now be questioned by Ross, that there was no fraud.
    The testimony of Valentin was also offered to prove what had passed at the time Beaulieu purchased this property from Philip Dueloslange, in April, 1819, to show that the donation was a sale to Eulalie, and that Beaulieu had received value; to this it was objected that nothing could be proved by oral testimony, to contradict the notarial act. The court sustained the objection, and defendant excepted. The court did not err, and its decision is correct; it is the positive law, and no such evidence could be adduced. As to the prescription, that cannot be maintained. Eulalie had no title; consequently, she was not in possession ; or, at any rate, it would have been necessary for her to have been in possession for more than thirty years.
    
      Benjamin and Micou, for defendant,
    contended : 1. As to the legitimacy of the present plaintiff. Like all other plaintiffs he was bound to make out a clear case; and, so far from having done so, the evidence is against the existence of a marriage. There is not a single witness who swears that he had ever heard of the fact of marriage: though several of them speak of the parties living as man and wife, &e. 2. The alleged nullity of the donation to Eulalie Dueloslange. The limitation over to the sisters of Eulalie has already been decreed-to be null. The question that remains is whether the nullity extends to the donation to Eulalie herself. This question did not arise in the first case, and was not decided. 3d Ann. 432.
    It is a settled rule in the construction of wills, that the nullity of one clause will not involve that of another, unless the construction involving such nullity cannot be avoided. Farrar v. McCulcheon, 4 N. S. 49. Maihurin v. Livaudais, 5 N. S. 306. McClusky v. Webb, 4 R. R. 204. Cole v. Cole, 7 N. S. 417. 5 Toullier, 44.
    
      If the law is satisfied by declaring the residuary clause null, the direct donation will be preserved. That part only will be declared null which contravenes the prohibition of the code. Duplessis v. Kennedy, 6 L. R. 247.
    The first part of article 1507 prohibits jidei commissa, as well as substitutions, and in this goes beyond the corresponding article 896 of the Code Napoleon. But the second clause is identical with the second clause of the article 896. The first clause prohibits alike jidei commissa and substitutions The second extends the nullity to the donee, not in all cases of jidei commissum or substitution, but to all cases when the donee is charged or enjoined to preserve the thing for another or return it to another. The language in the French text is borrowed verbatim from the Code Napoleon, “est chargé de conserver et de rendre á un tiers.” It seems to follow that although a jidei commissum good in France wpuld be void here, yet the donation itself is only null here when it would be null in France. The jidei commissum would not be enforced, yet if the full property be given to the first donee his title remains perfect, and the nullity reaches only the eventual disposition The nullity of the first donation is declared only when the donee is charged to preserve and to restore. The test of the validity of this donation to Eulalie is whether any such burthen was imposed upon her. This is answered by the donation itself, which gives her the full property, to do with and dispose of it as she please. 5 Toullier, 21, 38. McClusky v. Webb, 4 R. R. 204. Caldwell v. Hennen, 5 R. R. 24. Bernard v. Soulé, 18 L. R. 26. Liautaud v. Baptiste, 3 R. R. 446.
    3. Eulalie Ducloslange did dispose of the property in her life time. She sold it to Boss. This, so far from contravening the intention of the donor, is in precise conformity with his wishes. He gives her full power to dispose of the property. The jidei commissum is only a contingent right to arise in case she should not have disposed of it. It cannot be said that any thing is added or changed in the disposition of the donor, when effect is given to a disposition which he expressly and formally authorizes. No policy of the law is contravened, for Eulalie was free to sell, to mortgage and to give from the day of the donation.
    It was asserted on the argument, that the sale to Boss was a mere fraud and simulation. This is positively denied. It has never been either decreed or proved ; nor is the evidence in Ducloslange v. Boss before the court at present. But suppose it a simulation, in what did the simulation consist ? The plaintiff aver that it was a disguised donation to the husband of Eulalie. If it were admitted to be true, this would not help the cause of the plaintiff. She was free to make a direct donation to her husband, and being free to give it to him directly, an indirect conveyance would be equally valid and binding.
    A jidei commissum, pure and simple, is nothing but a naked trust without an interest. The trustee is the mere agent of the beneficiary, and this agency is no more unlawful than the thousands of common agencies which occur in the ordinary intercourse of life. It follows that all jidei commissa do not come within the meaning of the laws. All such are not prohibited in Louisiana. Mathurin v. Livaudais, 5 N. S. 302. Hope v. LaBaule, 4 L. R. 212. Malone v. Barker, 2 R. R. 369. Caldwell v. Hennen, 5 R. R. 20.
    If they do not tie up the property from commerce, or necessarily alter the course of descents, it is impossible to see how they conflict with the policy of the law.
    4. There is no merit whatever or equity in the claim of the present plaintiff. From the evidence in the record, it is apparent that he never was the owner of the property. It really belonged to the father of Eulalie, and Beaulieu was himself but a nominal holder. This is apparent from the testimony of the brother of Beaulieu, and on this point at least he is entitled to full credit; for it goes to establish the fact that neither Beaulieu nor his heirs ever had any real or just right in the property, and his testimony is corroborated by the written receipt showing the transaction between Beaulieu and Ducloslange.
    
    5. It is impossible to permit Beaulieu to attack the title of McBurney, a possessor in good faith. Using the permission that the act gave her, Eulalie conveyed the property to Boss for a valuable consideration; and Boss, for a like valuable consideration, transferred it to McBurney. Is it possible now for the original donor to come back upon the title which he himself has conferred, and disturb possessors in good faith and for a valuable consideration? In a late decision, Bastable’s Heirs v. Stacy and Curry, ante p. 411, the court held, that although the plaintiff’s title was good, yet it was lost by their lying by and permitting other rights to be acquired by mortgage and sheriff’s sale. But in that case, the origin of the mortgagor’s title was from a stranger to the plaintiff. This is still a stronger case for the defence. The origin of McBurney’s title is in the very party who now attacks it. If he choose to await the sale first to Ross and then to McBurney, without interfering, it is too late for him afterwards to retract his donation. He has not only permitted other rights to be acquired, but he has assisted in leading others to the investment of their money upon an apparent title conferred by him. He is the last person who should be permitted to attack a title to which he has given currency.
    6. This is nothing but an action to rescind a donation; it is barred in five years. C. C. 3507. The title is just, and the possession in good faith; it is, therefore, the basis of the prescription of ten years. If the nullity of the act be absolute, then it is not the basis of prescription; if relative only, it will serve for prescription. Vazeille Pres. 540. 2 TropJong, 905. In this case, there is no one who could attack the title except the donor and his heirs. It is a good title until attacked, and would, therefore, seem not to involve an absolute nullity.
   The judgment of the court was pronounced by

Rost, J.

In the case of Ducloslange et al. v. Philip .Ross, we held, a residuary donation “inter vivos” made to certain persons therein named to be null, as containing a “ fidei commissum” prohibited by law. 3d Ann. 432.

Baptiste Beaulieu, the donor in that case, availing himself of this decision, has instituted the present action to recover the property donated from the defendant, who is in possession of it.

During the pendency of this suit, and after issue joined, one Saintville Beau-lieu, alleging himself to be the only legitimate son and heir of the plaintiff, suggested his death to the court, and in his “ ex parte” application was authorized to prosecute the suit.

The defendant, expressly denying that Saintville was the legitimate son and heir of the plaintiff, took a rule upon him to show cause why he should not exhibit and file in court his authority, or prove by competent testimony the facts suggested by him.. By consent, this rule was tried with the merits, and the court being of opinion that the legitimate filiation was not satisfactorily established, and that the plaintiff had not complied with the formalities required to entitle him to recover the property as a natural child duly acknowledged, dismissed the petition. The plaintiff has appealed.

It was held by our predecessors, that marriage, like other contracts, may be proved by any species of evidence not prohibited by law, which does not presuppose a higher species of evidence within the power of the party. Holmes v. Holmes, 6 L. R. 470.

Adhering to this rule, we are not prepared to concede that the evidence adduced by the plaintiff in this case pre-supposes a higher species of evidence within his power, and we incline to the opinion that it makes out a prima facie case of legitimate filiation; we will therefore examine the cause on its merits.

In the case of Ducloslange we stated, that although every substitution is a fidei commissum, eveiy fidei commissum is not a substitution. This distinction finds its application in the present case.

Substitutions embrace every disposition by which the donee, the instituted heir, or the legatee, is charged to preserve the thing given and return it to a third person.

Article 1507 of the code which defines substitutions, was transcribed without change from the Code of 1808, and the French text evidently expresses the intention of the Legislature. The English text, taken literally, is without meaning.

It is an essential requisite of a substitution that the thing given be tied up in the hands of the first recipient during his natural life; in such a case the disposition is null, even with regard to the donee, the instituted heir or the legatee. Did the donation in this case have that effect? It transferred the property to the first donee, with full power to use it and dispose of it at pleasure, on condition that if she died without posterity and without having disposed of it, other persons named in the act Would, without any formality, become the owners of it.

It is clear, that Eulalie Ducloslange was not charged to preserve the property during her natural life, and that it was not tied up in her hands ; she, on the contrary, had full power to alienate it, and the condition attached to the donation was a mere fidei commissum, to be executed only in case she did not avail herself of the faculty given to her. That fidei commissum being in violation of a prohibitory law, is null, as We held in the former case; but that nullity does not carry with it the nullity of the donation to Eulalie Ducloslange. The entire disposition is.null in cases of substitution only. Duplessis v. Kennedy, 6 L. R. 247. The defendant having prayed for no change in the judgment.

It is therefore ordered, adjudged and decreed, that the judgment of the court below be affirmed, With costs.  