
    
      COPELLY vs. DEVERGES.
    
    
      At act cannot be attacked as fraudulent after the vendor has paid all his debts.
    To avail himself of a feigned delivery against a posterior, real one, the party must bring himself strictly within the law that sanctions his claim.
    The mere execution of a notarial sale, does not dispense with the delivery.
    Appeal from the court of the parish and city of New-Orleans.
    This was an action instituted by the plaintiff and appellant, for the revindication of a certain lot of ground, and the buildings thereon, which he claims by virtue of a certain donation made to him of the same, by one named Augustin Bony, deceased, his god-father, on the 24th December, 1787; who, on the same day, had purchased the same from Joseph Copelly, the natural father of the appellant. Deverges, the original defendant, plead that he was proprietor and possessor of the property in dispute, by a deed of sale, executed in his favor, from Joseph Defaucheur, ~ free man of colour, bearing date the whom he called in warranty. Defaucheur ap~ peared and plead that the sale from Copelly to Bony, was fraudulent and simulated, and that it was null for want of delivery against the defendant, to whom alone a tradition of the premises had been made, and also that the claim of the plaintiff and appellant was barred by the prescription of thirty years; and that the donation, under which be claim- ed, was null and void, for want of insinuation and acceptance. The parish court having rendered judgment in favor of the defen- dant, the plaintiff
    East'n District.
    
      June, 1822.
    
    
      Hennen, for the plaintiff!
    The plaintiff claims a lot of ground described in his petition, by virtue of a donation made on the 24th of December, 1787, by Bony to him, then an infant, 18 months old. The defendant now in possession of the lot, avers that the donation is void; 1st, because no acceptance, 2d, nor delivery was made thereof.
    I. The defendant’s counsel cited the treatise of Pothier on donations inter vivos, sec. 2, art. 1, to shew that (by the laws of France) an ae-ceptance was absolutely requisite to the va- . . # hdity of a donation. It is admitted that such is the law of Franee; but with the law of that country this court has nothing to do. The citation is however, of some value, as we learn from it, that by the law of nature, the rule is otherwise. La solemnite d'acceptation est Vexpression qui doit etre faite par I'acte de donation de Vac-ceptation du donataire. Cette expression est une pure solemnité requise pur nos lois, Sr qui ne le serait pas si les donations eussent été laissées dans le pur droit naturel, suivant leqUel Vacceptation, quoi-que non exprimée, quoique tacite ou designée de quelque maniere que ce fat, aurait été valable. Po-thier, Traité des donations, entre vifs. 12mo. edit. 1776, 52. Such is the opinion also of Antoine Fabre, in his Chiliad of the errors of the practionr-ers, Decade, 48, Error 3, n. 3.
    In Ferrari's Bibliotheca, Donatio, art. 1 n. 22, 26 ; we learn, from the opinion of various authors therein detailed, that the law of Spain requires no formal acceptance of the donation ; that the silence of the donee will be considered as an acceptance; and that unless it appears that the donation has been rejected, it will be considered as accepted.
    
      If. That a delivery of the thing is not necessary to make the donation perfect, is well established amongst the Spanish law writers. Castillo. lib. 3, cap. 10, u. 53, 56, says, Hodie donatio statim ut perfecta est, perpetua jit, el irre-vocabilis, nee amplius donanlem penitere potest. — ■ And to the same effect Gomez Resolutiones, vol. 2, cap. 4, de donatione, n. 3, in fine. Febrero, (1 vol. 303. edit, 1819, cap. 5, n. 4,) has expressed the whole doctrine on these two points in the clearest and most satisfactory manner; and to him I refer the court, in support of the principles advanced.
    The law on these two points being established, there can be no difficulty on the facts.
    On the 24th December, 1787, the donation was made in the usual form; the plaintiff’s mother, then his natural tutrix, by whom alone he could accept and take possession, lived in the house and continued to do so until 1817, when she died. From 1805, until 1817, she paid taxes for the property; which establishes her exclusive possession of the lot during that time. 9 Martin, 177. For the space then of about 30 years, the donor had not possessed this property, and until the present hour, he nor his heirs make no claim for it. Assuredly . . then this donation must be considered as valid, so far as regards the donor.
    But the whole was simulated, says the defendant’s counsel; fraudulent and void. And where is the proof of this? When Joseph Copelly, the father of the plaintiff, sold this property by a notarial act, in legal and strict form, renouncing every exception, and ac-knowleging a delivery of the lot to Bony; he was solvent and continued so for 12 years, until July, 1799, when he obtained a respite of five years, and then paid off his debts. No creditor has been defrauded; nor does any even complain of it. But Joseph Copelly, the father, who sold in 1787, continued to live on the property until his death. Yes; but he never claimed it as his property. On the contrary, when in difficulty with his creditors, 12 years after the sale of it by him, and when one of his creditors urged a concealment of a part of his estate, no claims were made against this lot. J. Copelly himself, on his bilan of 1799, to the truth of which he solemnly added his oath, made no mention of it. No one witness has been produced to shew any claim set up by him during all this time, nearly 30 years, to this property; and . . his own most solemn assertion under oath, has no^ jjeen contradicted by any evidence. It jjjjg ¡s that the plaintiff lived on this lot more than ten years, and there held his blacksmith’s shop, exercising his trade, without opposition from any one, can a doubt be entertained of the fairness and reality, either of the sale, or of the donation ? Or of the acceptance and possession of the lot by the plaintiff?
    A conclusion in favor of the plaintiff’s demand, must be drawn from the facts of the case, unless the court will fix upon his father the crime of wilful and corrupt perjury. To avoid affixing this stigma upon the plaintiff’s ancestor, all that is required, is to ratify notarial acts of more than 30 years standing.— Ten years have been considered as time enough to bar all actions for the rescission of conventions ; Civil Code, 303, art. 204. This court then cannot favourably regard attempts to annul acts of 30 years date.
    The criticisms made by the counsel on Part. 3, 30, 8, are sufficiently answered by the authorities which have been quoted, to shew that a delivery is not necessary. The JS’ovi-
      
      sima Recop. lib. 10, II, by the opinions of all the Spanish writers, has made a most important change on the subject of contracts ; and the very authors, quoted by the counsel, are against him.
    Dumoulin, for the defendant.
    The appellant says he is entitled to a judgment in his favor, because he has shewn a complete title to the premises.
    Admitting even this principle which I deny, I contend that his client has no right to the premises, because he has not shewn any legal title.
    He pleads on a donation, which has two vices. 1. The want of insinuation; that this is fatal, may be easily seen by referring to Fe-brero addicionado, vol. 1, 332 and 343.
    2. The want of acceptation, for this vide Febrero, ad. vol. 1, 332, Paz, consultas varias Classe, 11, con. 1, n. 5,149, and the institutions du Droit Belgique, par George de Ghewiet, vol. 1, 267, art. 4, 5, et seq. I cite this work, because the author deduces the necessity of an acceptation of a donation, from it having been in that country, determined that donations were contracts, or pacts, which they are considered, by the Roman laws, and consequently must be accepted, and ratified to be va]¡,j. ¡,⅛ Lecons du Droit Civil, vol. 2, 40, et ^ j ajso c’te ^¡⅜ wor]s? because it affords a good commentary on the laws of Spain, as that country was long under its dominion.
    Other defects might be shewn in this donation, but the above are sufficient to destroy its validity; since it is a known and fixed principle of our law, that donations are always to be construed and judged by the rules of strict lawr, and are vitiated by a want of any of the formalities or qualities which the law requires they should have, and be accompanied with.
    But, not only is the title of the appellant thus defective and vicious: suppose it for a moment valid, it cannot avail him in this case against a third possessor. He, the appellant claims from a man who never was in possession of the lot, or rather half lot of ground in question. This results from the proof on file in this case, which shews the deed of sale to Augustin Bony, to have been fraudulent and simulated ; but I may be told, that though Bony never was in actual corporal possession of the half lot in dispute, yet, that by law, to 
      
      toit, the 8th law, tit. 30,part. 3, he is to be considered in possession, by virtue of the deed. But this court has already decided in respect of this law, that delivery of title is not sufficient, against third persons; and in looking over the record of the case of Pierce vs. Curtis, on file in this court, I feel Í can confidently invoke the favor of the court for my client. In that case, the judge, who gave judgment, said, that though the delivery of slaves is considered as made, when such delivery is made to result from the deed of sale, yet that such constructive delivery did not appear from the words of the sale in that case; yet. what were the words in that deed ? They were as follows — grant, bargain and sell, assign, transfer, and set over; with besides, a clause of mortgage on the slave for the security of the payment of the price, which mortgage is subsequently released by a deed of acquittance and release. I need not observe to the court, that in countries under the empire of the civil law, and where a simple delivery of the title was not sufficient to presume a delivery, yet a clause of mortgage always had such force as to carry with it the presumption of delivery; yet in the case of Pierce vs. Curtis, notwithstanding these ^ong points, the judge who gave the opinion, always favoring the equity of a case, declared that constructive delivery could not be presumed from the words of the act of sale, and besides, that there was evidence that the slave always remained in the possession of the vendor; compare this case with the one actually before the court. Is there any clause in the deed of sale from Copelly to Bony, from which a constructive delivery can be drawn ? There is no mortgage reserved, no clause of constituí, no acknowlegment of being put in possession, on the part of the vendee, Bony; there is no delivery made in any other way as pointed out in the 5th law of the 30 tit. part. 3, where it is said, among other things, that two things are necessary to acquire possession of a property, such as the one in dispute — do either of these result from the deed of sale, signed by Bony ? Or is there in fact any thing from which a feigned delivery can be presumed. See on this point Pothier, contrat de vente, vol. 1, 327, n. 313, and n. 321, where he expressly treats this question, whether a feigned delivery should have the same effect as a real one, in relation to third persons; he sets out with saying, that there is a difference of . . . opinion, and states, that while one set of learned men decide in the negative ; another class, among whom he particularly cites Guy Pape, decide for the affirmative ; this last opinion Pothier thinks most reasonable. As it seems to be against me, allow me to call the attention of the court to the kind of feigned delivery, which Guy Pape thinks sufficient: It is said, that the tradition feinte qui resulte de la clause de retention d'usit fruit, ou de la clause de retention de la chose a titre de ferme ou loyer, ou memc par la simple clause de constituí, &c. The definition of feigned delivery, given by Pothier in n. 313, above cited, shews that this was the kind of feigned delivery he meant; that justice forbids that it should be such a kind of delivery, as is made to result from the simple delivery of the title, as you have already decided in the above named case of Pierce vs. Curtis, where the delivery ivas nothing more than in this case; a simple declaration of alienation to the vendee. I have thus far only argued on what results from the literal proof on file in this case; since the adverse counsel seems to ground some hope on the testimony to which I thought he could not decently appeal, let us see what it developes : — the adverse counsel contends, that Copelly, the father, did not continue in possession of the Jj0uge jn dispute, after the sale and donation, but that it was the mother of the appellant; that is the concubine, the menagere of Copelly. Can such an allegation be decently or respectfully made ? I am sure it cannot be successfully contended. It is proved that Copelly, the father,always remained in possession; that he never ceased to be in actual corporal possession : all the witnesses, with the exception of one or two colored ones, declare that the house and half lot were always reputed his. In fact, the testimonial proof duly considered, shews the entire and true features of the case; it shews the sale to Bony to have been fraudulent and simulated : which is the more confirmed by the pretended donation to a bastard, which would seem to confer on a concubine a title to property, which she wished to preserve for the man, to whose coarse voluptuousness she ministered. This court will not* surely, in such a case, give a favorable construction to the possession of a concubine. It is to be remarked that not one single witness has ever said that the house and half lot were reputed to belong to the appellant, - but one (who is the only one) who alleges that it was said to belong to his mother, and never mentions the name of the appellant; the appellant himself never possessed : he is since fourteen years back, of the age of majority, and never until the year 1819, pretended any right to the house and half lot, although long after, and before his majority, he was driven from it by his natural father. As to the payment of taxes, the appellant can draw nothing in his favor from that; as his mother never paid taxes, as his tutrix ; but always as proprietor of the house and half lot, which we have shewn that we did, since the moment that we purchased the place.
    I now come to an argument which I believe the court will deem of sufficient authority to decide this case; I draw it from the law of the Partidas, to wit, the law 50th, tit. 5, part. 5, which says, that if a thing be sold to two persons, and has come to the possession of the second purchaser, that second is to be preferred. I say with respect, and with confidence, that this law decides the question; because, even giving to the appellant the full benefit of that law of the Partidas above cited. which says that delivery of the titles works a delivery of the thing; yet, when I consider how the equity of this court has chastened law, and when I look and reflect on the words of the law of the 5th Partida,• as well in the original as in the translation, made by direction of our legislature, I feel, I repeat, some confidence in appealing to it. In the translation, it is as I have above quoted: if the second purchaser come to the possession of the thing, and has paid the price, it will belong to him, and not to the first. The words of the original are, si el posterior comprador possesse a la tenencia, e a la possession, e pagasse el precio, que el la deve aver, e no el primero. The court will observe, that the legislator does not content himself with the word possession, but prefixes to it the word tenencia; which means the real corporal act of holding, as may be seen, by appealing to the best dictionaries of the Spanish language. And to whom is this posterior comprador preferred? To one who actually possessed; not simply to an imaginary possessor, but to one who posea a la tenencia de la cosa e pago el precio, as is stated in the law referred to. It never could have become so difficult, so vexata questio as it is, if the mere giving a title or deed of sale, was construed to work a delivery, to the injury of third persons ; such a construction would be the greatest protection and cover to frauds, of all descriptions, and this court in giving its opinion in the case of Pierce vs. Curtis, fully felt the force of it. If the mere delivery of a deed of sale, was a full and complete delivery, in regard to third possessors, would Gregorio Lopez, in commenting on this very law, of the 5th Partida, with the knowlege which he must have had of the previous law of the 3d Par-tida, giving such virtue to a mere delivery of title, have said, Quid si utrique tradita fuitpos-sessio,ñeque constant cuiprimo fuit tradita? Since the dates of the deeds of sale would always decide the question, and the only enquiry would be, who bought first by a public deed, when he would be preferred. Taking the opinion of those who deem a delivery by title sufficient, they decide in favor of my client: since every one of them, from Guy Pape, above cited, to the present day, requires something besides the mere fact of alienation; they all require some clause, as that of constituí, or some other similar, such as giving of usufruct, or hiring to the vendor, or he acknowleging that he possessed for, and in the name of the ven-dee; see even the much relied on authority of Gomez, who, in speaking and delivering his varj0us opinions on this subject, always speaks of traditio per actum jictum ; and in writing on this subject, uses these words, quia in emptorem, cui est facta traditio, translatum est dominium, et plenum jus rei mediante titulo et traditione. Gomez, var. resol, cap. 2, n. 20. even in that part of that number where he seems in favor of the appellant, he uses the words facta traditio per ac-tum fictum: alteri vero per actum verum ; meaning that in relation to third persons, delivery must be made by some of the modes signified in the 6th law, tit. 30, part. 3; for it is only between the original parties, that the mere delivery of title, which the 8th law of the same tit. and part, says is sufficient, can equitably be said to have effect; for this I appeal to everj commentator, and for an apposite authority on the case, I beg leave to refer the court to the above mentioned work, on Belgick law, vol. 2, p. 33, art. 13, and same vol. 25 and 26, art. 20, which expressly says, that he who is first actually in possession, is to be preferred to an anterior purchaser, to one Who was first ad-herité, to him who had the first patent; vide also Siguenza de Clausidis, fol. 86, cap. 14.
    
      But I relj on the authority of Gomez self, when I consider the facts of this case as developed by the testimony on record. In the same work of his above cited, and in the following page, he supposes our case, and decides it in our favor; he says, that the second sale, made in good faith, is to be preferred to a prior one, which was fraudulent; he goes further, and says, it is to be preferred, although it was characterised by fraud, or at least, that it is the opinion of those who do not join him thus far, that at least the goods or property of the seller must be discussed, before recourse is had to the second purchaser. That we are purchasers in good faith, cannot be denied ; that the sale to Bony was fraudulent and simulated, strongly results from the evidence.
    Suppose, however, that this court should nevertheless feel some doubts in this cause, these very doubts are as many arguments in favor of my client; on the strength of legal maxims, I invoke them in his behalf. In civil as well as in criminal suits, the cause of the defendant is most favorable; in cases of doubt, he, who is in possession, ought to be maintained. Melior est conditio possidentis et rei 
      
      quam actoris ; erit potior possidentis conditio. In 1delicto, vel causa, potior est conditio possiden-¿{s. Melior causa sit possidentis, quam petentis. The learned Paz considered these maxims of such force, that in a case of liberty, he decided in favor of slavery. Vide, Var. Con. Classe, 1 consult, 40 n. 243.
    
      JWoreau, on the same side.
    The question before the court, is, whether a feigned tradition of an object sold or given, is operated by the simple fact of the passing or execution of the deed by which the alienation of the object is intended to be made, or is it also requisite that the deed be delivered to the transferee.
    The manner in which the 8th law, 30 tit. of the 3d Partida, has been translated into English, may have given rise to the idea that the simple execution of the deed of alienation operates a feigned delivery, without being accompanied by a real tradition of the title. But if we carefully examine the original, and the translation, we will be fully convinced that besides making a new act, it must be delivered to the transferee, in order to operate a delivery, such as is contended for. In effect, the words in the original are, o faziendo otra 
      
      de nuevo e dando gela. And in the translation they are rendered, and makes, and delivers to him a new one. Hence we must be convinced that this law requires evidently two things in order for the tx-ansferee to acquire lawful possession: 1st, the execution of the deed of alienation in his favor; and 2d, the delivery of the title to him.
    This delivery of the deed is absolutely necessary to operate a Active tradition. It may be considered the symbol and characteristic, as when a person gives possession of a field or tenement to him who acquires it, by pointing to it, so that he may see it, although he does not really enter upon it.
    The making of a new title, is not therefore sufficient. This title must besides be diliver-ed to him who acquires, and this evidently results from Gregorio Lopez's Latin translation of the same law. Per Iraditionem litera emptionis vel donationis rei, vel faciendo literam emplori, vel donatorio acquirilur passessio, literam recipienti.
    
    It then results from this translation of Gregorio Lopez, that a Active tradition can be had in two. ways, 1st, when the transferor delivers to the transferee, the titles by which himself holds the thing; and 2d, in executing a new deed of alienation, and deliver-ingr it to the alienee. ®
    But it is evident, that in order to operate a feigned tradition in this second manner, two things are necessary to concur in doing it, 1st, that the alienor execute a deed of alienation ; and 2d, that he deliver this instrument to the alienee.
    This is what we find clearly explained by Antonio Gomez, in his commentaries on the 11th and 44iA laws of Toro, which laws being posterior to those of the Partidas, ought to serve, us we may presume, in coming to the right understanding.
    In the text of the 17/A law of Toro, vol. 2, 102, of Gomez, the question is treated of a donation, which a father or other assendant may make to his descendant, to the prejudice of others, whether by donation inter vivos, or by act of last will and testament; and it is there stated, that if the donation is made inter vivos, and if possession is given of the thing, or the deed delivered in the presence of a notary, o le overe entregado ante cscrivano escritura d'clla, a donation thus made shall be irrevocable.
    
      In the 44iA law of Toro, vol. 2, 131, the subject of majorats is treated of, and it is stated that a father may revoke such of these majorats which he may have constituted in-favour of any of his children, unless he should have done so by an act inter vivos, by which he should have given him possession of the objects composing the majorat* or should have delivered the deed in presence of the notary. O Voviere entregado la escritura duello ante es-crivano. We see that the legislator, in both these cases, uses the same expressions, in relation to the delivery of the title or deed of donation.
    We must suppose that by the expressions, entregado la escritura d'ello anté escrivano, the legislator meant not that the feigned or symbolic delivery could be effected by the simple act of the execution oí the deed of donation in presence of the notary, if this manifestation of his will is not accompanied by the actual tradition made by the donor, to the donee of the title of donation. In fact, the manner in which Gomez reasons on this subject, as to the delivery of the title in the presence of the notary, leaves no doubt on this subject, that it is indispensible in order to effect a feigned delivery of the object given,
    
      Here then is the manner in which Gomez expresses himself; he asks if possession is given by the delivery of the old or the new deed, to the donee. An requiratur, says he, traditio in-strumenti novi vel antiqui, ut transeat possessio, Gomez, vol. 2, 233, in the summary, at the head of his commentary, on the 45 law of Toro n. 57: — The following is the way in which Gomez answers the above question: First, as to the fictive tradition which may he effected by the delivery, which the vendor or donor makes to the vendee or donee, of the ancient titles by which he possessed himself the thing alienated, Gomez says, item adde quod ista con-clusio et doctrina qua habet quod per traditionem instrumenti transit possessio ipsius rei debet intel-ligi quando traditum instrumentum in quo conti-netur quo vel titulus, mediante quo tradens habuit illam rem, etc. Gomez, vol. 2, 264, n. 57. No doubt then but that the delivery by the vendor or donor, to the vendee or donee, of the titles by virtue of which he himself possesses the thing alienated, operates a feigned delivery of that thing, which we find is in conformity to the first part of the 8th law, 30 tit. of 3d Partida which declares that a feigned delivery is effected by the delivery of the titles, by virtue of which the donor possessed the thing apoderándole de las cartas par que la ello ovo.
    
    But it must be here observed, that in order to operate the feigned tradition by the first of these means, it is necessary that the title of the donor be really delivered to the donee; that this delivery, agreeable to the 17iA and 44th laws of Toro, he made in presence of the notary, and what is a natural consequence, this delivery must be verified by the notary in his deed; because it cannot be supposed that proof can be made of a Active tradition, which consists in facts or expressions purely symbolical : as when a vendor makes a delivery agreeable to the 29iA art. 350, of our Code, either by the delivery of the titles, if there are any, or of the keys, if it is an enclosed place, or in giving to the purchaser a view of the thing, or in consenting that he should possess for him, unless all these things are expressly mentioned in the deed of alienation.
    Let us now return to Gomez, and see how he explains the second manner in which a symbolic or Active delivery is made. It is by the delivery of the new title, which the alien- or makes to the alienee at the time of executing the deed? We perceive in reading this same passage in n. 57, that anciently some authors contended that the delivery of the new title of alienation was not sufficient for a feigned delivery, unless it was accompanied by that of the old titles, by virtue of which, the alienor himself possessed the thing by him alienated; but that these doubts were removed by the new laws, which had corrected this old doctrine, and that at present it is sufficient to deliver the new title. Gomez on this subject, expresses himself in the following terms: Ho-dié lamen aperté istud corrigitur, per leges nosfri regni, imo quod sufficiat traditio instrumenti novi presentí alienationis ; ita probat et determinate l. 8, tit. 30, part. 3.
    But nevertheless, in agreeing with Gomez, that agreeably to the said law, 8th, tit. 30,part. 3, the simple delivery of the new deed of alienation is sufficient to operate the fictive delivery of the thing, it is clear that this word delivery, traditio instrumenti, cannot be understood as to mean the simple execution of the new deed, for besides that, the Latin words of traditio instrumenti can admit of no doubt; it will be granted, that if a delivery took place by the simple fact of the execution of the deed, and by the consent of the parties, the whole system of feigned and real traditions J ° _ . would vanish, and third possessors would in consequence be deprived of any recourse which they might be warranted to exercise on the thing alienated in the interval between the execution of the deed, and the real or feigned delivery of the thing, and we must here observe, that Gomez in all his observations in his commentaries on the 17th and 44th laws of Toro, considers that the principles of feigned delivery which regulate donations, should likewise apply to sales, and that one should not be more favorably viewed than the other.
    If the fact of the tradition, or delivery of the deed of alienation, could for a moment have been confounded with the passing of the deed itself, that must arise from the difference which exists between our usages, and those which subsisted when the laws of the Partidas and of Toro, which require this delivery were passed. Nowadays the parties go before a notary, who takes notes and makes the original, and often does not deliver a copy, unless he is required. On the contrary, under the Spanish government, and particularly at the period of the promulgation of the Par-tidas, the notaries held a book of notes, in which they entered a memorandum of the conventions agreed on between the parties. It was from these notes that they drew out the j.rue orjg¡nai or exemplification of the deed, which was always delivered to the party by whom it was held as the original, and the deed thus delivered was so truly the original, that in case of its being lost or destroyed, it was necessary to the judge, for his authorization to the notary,to draw out another original, which supplied the place of the first, and which was taken from the notes which the notary had preserved. The 10th, 11 th and 12 th laws of the 19 tit. 3d Partida, contain several enactments on this subject.
    It is then easy to understand what the laws of the Partidas understood by this delivery, of the deed of alienation, and until this delivery was made, there was, in reality, but a symbolic tradition. We must then conclude, that the donation made to the plaintiff and appellant, by virtue of a deed of which the notary alone possessed the original, could not operate a feigned delivery in his favor, unless the notary should have expressly stated that a copy thereof was delivered to him.
   Mathews, J.

delivered the opinion of the court. In this case, the plaintiff sues to recover a house and lot described in his petition. The written evidences of his title, are, a deed of sale from Copelly, his reputed father, to one Bony, and a deed of gift from the latter to him; both executed before a notary public, on the 24th of December, 1787. The defendant, who has possession of the disputed premises, sets up a title derived from the same original proprietor, Copelly, sen., who sold, conveyed and delivered the same to one De-faucheur, by authentic act, executed on the 6th of September, 1817, who, on the 18th of May, 1818, sold to the defendant by asimilar act of sale. Other evidence in the cause, supported by written documents and oral testimony, shews that Copelly the elder, under whom both parties to this suit claim title, was, in the year 1794, in embarrassed circumstances, and that he filed his bilan, in Avhich no claim is made to the property, the subject of the present contest; that he and a free negro woman, called Rose Grondil,the mother of the plaintiff, and concubine of his father, remained in possession of said house and lot, either both together, or one of them, up to the year 1817, the date of the sale to Defaucheur; that , , during this period, Copelly, the father, ímpro-ved the lot by buildings and repairs, for which paj(j ouj. own Rose paid taxes on the property, as her own, for several years; and the plaintiff occupied and used a small house thereon as a blacksmith shop, during some time. It is agreed that Copelly, sen., paid off and discharged all his debts.

Judgment being for the defendant in the court below, the plaintiff appealed.

He claims a reversal of said judgment, and that the property sued for should be here adjudged to him; relying on the validity and strength of his title, his own possession, and that of his mother. In support of the judgment of the court a quo, the appellee assumes three principal grounds of defeuce : 1. That the acts, both of sale to Bony, and donation to the appellant, are feigned, simulated and fraudulent. 2. That they did not convey the property, and transfer it in full dominion, for want of delivery to the first vendee, and also for want of acceptance and delivery under the act of donation. 3. That the plaintiff’s action is barred by the prescription of 30 years, &c.

The possession of Copelly, sen., appears not to have been entire and exclusive, during ° the whole time which elapsed from the date of the sale and donation in 1787, until the last sale in 1817. Rose Grondil, the mother of the plaintiff lived in the house, and paid taxes for it as her own. Copelly, jun., also occupied a blacksmith shop on the lot. At the period of commencing this action, in February, 1819, it appears that he was about 32 or 33 years old. When he acquired title by donation, it is stated in the act, that he was of the age of 18 months. Prescription could not affect his rights during his minority, unless it be that of the longest time, which begins to operate on the claim of minors, only after they have arrived at the age of puberty, (admitting that it can in any case affect them.) On this view of the subject, we are of opinion that the plaintiff’s action is not barred by prescription.

To shew that the sale to Bony, and the donation from him to the appellant, are feigned, simulated and fraudulent, no evidence is offered except the record of the proceedings which took place in 1794, on a charge of fraud against Copelly, sen., in relation to his conduct as an insolvent debtor; and the circumstance of his still remaining in possession of the property, after said sale and donation. Whatever might be our opinion as to the nul]¡^y (y,ese deeds, on the ground of simulation and fraud between the plaintiff and creditors of Copelly; between the parties to the present contest, it is believed that no legal evidence has been adduced, sufficient to destroy their validity, on account of these alleged defects. As to fraud, there certainly is no foundation for it, after admitting that the vendor has paid all his debts.

Having thus disposed of prescription and simulation; we must take into consideration the questions which relate to acceptance and delivery; believing that on a just interpretation of the Spanish laws on these subjects, depend the claims and rights of the parties litigant.

In examining these questions, it is proper to commence with that which relates to the defect of title, said to have originated in the want of delivery of the property, under the sale of Copelly to Bony, the donor of the plaintiff

The law 50th, of tit. 5, Part. 5, on this subject, seems to be so clear, in giving a preference in rem, to the last of two purchasers of the same thing, to whom it has been delivered, as to leave neither doubt nor difficulty in the case, but lead directly to a conclusion favourable to the pretentions of the defendant. Opposed to this the appellant insists: 1st. That Copelly, sen., did not continue to possess the property in dispute, as owner, up to the time of sale to Defaucheur; and that the real and bona fide possessor was Rose Grondel, representing her son a minor, who claims under the act of donation, from Bony the first purchaser; to whom at least a feigned tradition had been made according to the law 8th, tit. 30, Part. 3, wherein it is stated, that “when one man gives another an estate, 8cc.fi and delivers to him the title he already has, or makes and delivers to him a new one, the donee will acquire possession of the thing, though it had not been delivered to him corporally. As to the first ground assumed by the appellant, its solidity depends entirely on the effect which ought to be given to the act of sale to Bony. If it operated a feigned delivery, then the dominion of the property passed from the vendor to him, and the former no longer possessed as owner, and could not give a valid title • to the subsequent buyer, by sale accompam-e(j with real tradition. The law, on which this feigned delivery is attempted to be based, seems, when taken in its full extent, to be somewhat inconsistent with the law first cited, relating to sales of the same thing, made to two persons, which gives a preference to the last purchaser, who has obtained possession. It the new title referred to in the former law be considered the act of sale, or donation by which the transfer of the property is made from the owner to the purchaser or donee; it would lead to this result, that in all cases of sale or donation, made and executed in writing, no delivery of the thing intended to be conveyed, w ould be necessary; the possession of the title, or act of sale being equivalent to actual and corporal possession; and would thus destroy the whole doctrine of law on the subject of tradition and dominion of property. The inconsistency would be less; if according to some of the doctors of the civil law, this feigned mode of acquiring possession, should be restricted to the delivery of the written instruments of the original right and title of the proprietor; or as suggested by others, the expression in the law 8th, tit. 30, Part. 3, o faciendo otra de nuevo should be understood of a new title substituted for the old, which had been lost or destroyed. However, a contrary opinion seems to be holden by Gomez, in his commentary on the 45th law of Toro, n. 56 and 57.

It is perhaps true that a feigned delivery to a first purchaser gives him a preference over a second, to whom real tradition may have been made. See Gomez, var. resol. tit. de evictione el venditione.

Without attempting to reconcile and settle the differences between these doctors, we believe it may be safely laid down as a principle of self-evidence, that a person who claims the benefit of a fictitious act of tradition, in opposition to a real one, must bring himself completely within the lawr which sanctions such fictions.

It is necessary that the title should be delivered, whether new or old. In the present case there is no evidence that the act of sale to Bony was ever delivered to him, unless it be considered, that being executed before a notary public, is equivalent to delivering an act under private signature. The law makes no distinction, and we ought not: a co- ... pía original (as termed by the Spanish law) c°uld have been easily obtained, and delivered in presence of the notary. We are therefore of opinion that the house and lot now in dispute, were never, either by act real or fictitious, delivered to Bony; that he never had possession of them, and consequently could have given none to Rose Grondel, the mother, or to the plaintiff, under his act of donation. We conclude, that Copelly possessed the premises in dispute, in virtue of his original title, until the period at which he sold to the warrantor of the defendant, who seems to have had possession under said sale, and to have sold and delivered to the appellee.

This view of the cause renders it unnecessary to investigate any matter which relates to the question of acceptance under an act of donation, according to the Spanish law.

Before concluding, it may not be improper to advert to a note in the translation of the Partidas, by Moreau & Carleton, on the law relating to the delivery of titles. This note refers to the case of Pierce vs. Curtis, in which the translators seem to consider the decision as contrary to the text. That case was decided on rules of the Code, which establish the _ . _ , mode of fictitious delivery, by expressions to be used in the instrument of sale. Here, as in the present case, and as it should be in all similar cases, the fiction was limited to the strict words of the law.

it is therefore ordered, adjudged and decreed, that the judgment of the parish court be affirmed with costs.  