
    (96 South. 1)
    No. 24745.
    OTIS et al. v. TEXAS CO. et al.
    (May 8, 1922.
    On Rehearing, April 2, 1923.)
    
      .(Syllabus by Editorial Staff.)
    
    On Rehearing.
    1. Pleading <§=>90 — Denial of signature proved to be genuine does not cut off defenses by codefendant.
    Code Prac. art. 326, providing that a defendant whose signature shall be proved after his denial thereof shall be barred from every other defense, does not apply to codefendant of the litigant who denies his signature.
    2. Pleading <§=>90 — One executing instrument by mdrk not estopped by unsuccessful denial of signature.
    Code Prac. art. 326, providing that defendant whose signature shall be proved after his denial thereof shall be barred from every other defense, construed in connection with articles 324 and 325, does not apply to one executing instrument by mark.
    3. Limitation of actions @=>40(1)— Prescription; illegality of power of attorney could be set up in defense at any time.
    , Under Code Prac. art. 20, where married woman executing power of attorney for sale of land without husband’s authorization remained in possession, she could assert illegality of the sale by exception and answer when sued, notwithstanding the prescription of Civ. Code, art. 3542, relative to actions for nullity or rescission.
    
      4. Husband and wife ,<@=199 — Reconveyance to married woman of paraphernal property illegally conveyed held not ratification of the conveyance.
    Where conveyance of married Woman’s paraphernal property was without husband’s authorization, and grantee, recognizing illegality, reconveyed to her and took a mortgage, the reconveyance was not ratification by her of original conveyance so ns to vest title in the community.
    5. Deeds @=75 — Sales; act of ratification must be executed with intent to ratify and clearly evince intent.
    To execute voluntary ratification, under Civ. Code, art. 2272, the act must be executed with the intention to confirm and ratify, and must evince such intention clearly .and unequivocally.
    6. Husband and wife @=249-r-Reconveyanee of paraphernal property illegally conveyed did not vest title in community.-
    Where conveyance of wife’s paraphernal real estate w.as illegal for want of husband’s authorization, reconveyance by grantee, was mere retrocession and not purchase during the marriage so as to vest title in the community.
    7. Husband and wife <@=249 — When conveyance of paraphernal property defective, wife could not purchase from grantee so as to vest title in community.
    Where deed to wife’s paraphernal real estate was not authorized by husband, it conveyed no title, and under Civ. Code, art. 2443, the woman, being already the owner, could not repurchase so as to vest title in the community, and title remained in her under her original purchase.
    8. Vendor and purchaser @=228(4) — Sales; purchasers from husband's heirs held not good-faith purchasers:
    Where purchasers from husband’s heirs, in reliance on ex parte judgment of possession rendered in husband’s succession, would have ascertained, by examining the title, that conveyance to wife during the marriage was re-conveyance of property previously conveyed by the wife, that such conveyance was defective because executed without husband’s authorization, and that property was originally acquired by wife before marriage, they were not good-faith purchasers and acquired no greater rights than the heirs had.
    9. Vendor and purchaser @=226(1)' — Sales; purchaser bound to examine title.
    Purchaser is bound to ascertain nature of title of property which he seeks to purchase and, in looking up titles, must examine them act by act and mortgage by mortgage.
    10. Husband and wife @=255 — That purchase by married woman was with paraphernal funds may be shown.
    Purchase of land by married woman in her own name being unusual puts the public on guard and accords her the right to show that purchase was made with paraphernal funds under her administration, though investment of paraphernal funds does not appear in the act.
    11. Vendor and purchaser @=229(1) — Sales; purchaser of litigious right acquires no greater right than vendor.
    Persons purchasing a litigious right with knowledge that the title is in dispute and that they will have to resort to a lawsuit acquire no greater rights than their vendors.
    Appeal from Third Judicial District Court, Parish of Claiborne; J. E. Reynolds, Judge.
    Action by Mrs. Rowena C. Otis and husband against the Texas Company and another. Prom a judgment for defendants, plaintiffs appeal.
    Affirmed on rehearing.
    Stubbs, Theus, Grisham & Thompson, of Monroe, for appellants.
    Hampden Story, of Shreveport, Goff & Barnette, of Arcadia, and L. K. Watkins, of Min-den, for appellees.
    By Division B, composed of O’NIELL, LAND, and BAKER, JJ.
   LAND, J.

This is a petitory action instituted by petitioner and her husband, appearing herein individually and as head and master of the community, against Alice White Lewis, the surviving widow of Jerry Lewis, and defendant company, as parties in possession, to be decreed the owner of an undivided one-half interest in certain lands situated in the parish of Claiborne, and for judgment against defendants in solido for the value of one-half of the oil taken from said lands.

Plaintiffs applied in their petition for a writ of judicial sequestration, but by subsequent agreement signed by counsel on both sides, it was consented that the defendant company, as the lessee of Alice White, should continue to receive the output from all wells on the land in controversy and should dispose of the same as it might think best, and should hold the proceeds of one-half of all the oil until the final determination of this suit, and should pay such proceeds to whomsoever might be finally adjudged the owner of the same.

On January 1, 1896, the New England Mortgage Security Company of the State of Connecticut conveyed to Alice White, for the consideration of $425 cash, the S. V% of the S. W. Vi and the N. W. Vi of the S. W. Vi of section 25, township'21, range 8, containing 120 acres, located in the parish of Claiborne, state of Louisiana. This deed was filed for record March 15, 1908. x

Petitioners’ vendors are the heirs of Jerry Lewis, and the issue of his first marriage with Mary Nuckles about the year 1866. On April 6, 1904, Jerry Lewis contracted a second marriage with Alice White, but there was no issue of this last marriage. It therefore appears that at the date of the marriage of Jerry Lewis to Alice White, this property was her separate, paraphernal estate, having been previously. acquired by her in the year 1896.

We find in the record two powers of attorney. One is of date March 11, 1908, signed by “Alice (her X mark) Lewis,” “Attest Frank White,” and filed for record March 14, 1908. This power of attorney evidences no authorization by Jerry Lewis to his wife to execute the same. The other power of attorney is of date January 11, 1910, and is Signed by “Alice X White,” and “F. A. White.” It is attested by Wm. Hardy and Frank White, and is also signed by “Jerry X Lewis” to authorize his wife to execute the same. Each of these mandates is otherwise identical in terms:

“I hereby authorize my son, Frank White, to sell and convey to Dr. J. W. Featherstone my ■140 acres of land which is now mortgaged to Mr. J. C. Bridgeman, said land to be sold for one hundred dollars cash. I hereby ratify all that he may do in the premises.”

On March 12, 1908, and under the power of attorney of date March 11, 1908, a deed was executed by Frank White as agent of Alice Lewis, and - by himself acting individually, conveying to Dr. J. W. Featherstone the .S. Vz of the S. W.y, and the N. W. Vi of the S. W. Vi of section 25, township 21 N., range 8 W., and the S. E. Vi of the N. E. Vi of section 35, township 21 N., range 8 W., containing 160 acres more or less, with all and singular the improvements thereon. The consideration of this sale stated in the deed was the sum of $230 cash.

On January 13, 1910, Dr. J. W.' Feather-stone reconveyed ‘to “Alice Lewis, wife of Jerry Lewis, hereto authorized and assisted by her said husband who signs to authorize her herein,” the following described property, to wit:

“The Sy2 of SW% and NW% of SW% of section twenty-five (25) in township twenty-one (21) north of range 8 west, being the same property acquired by this vendor from this vendee heretofore and containing 120 acres more or less, with all and singular improvements thereon.” (Italics ours.)

The consideration stated in this transfer was $187.70 cash.

On the same date of the execution of this deed, to wit, on January 13, 1910, Alice Lewis, duly authorized by her husband, Jerry Lewis, executed a mortgage on said 120 acres of land in favor of Dr. J. W. Featherstone! to secure the payment to him, or to any futur^ holder, of a certain promissory note for the sum of $204.50, executed by Frank White and due December 1, 1910.

On February 20, 1918, Alice Lewis, “widow of Jerry Lewis, deceased,” as recited in the mineral agreement between herself and the Texas Company, leased to said company the S. % of S. W. Vi and the N. W. % of the S. W. Vi of section 25, township 21 N., range 8 west, containing 120 acres, for the purpose of prospecting for oil, gas, and sulphur. The consideration of this lease was the sum of $120 cash.

On December 31, 1920, the heirs of Jerry Lewis, who died on or about January 10, 1916, entered into a contract with the law firm of Stubbs, Theus, Grisham & Thompson, composed of F. P. Stubbs, J. C. Theus, O. Grisham, and M. C. Thompson, by the terms of which said heirs employed said law firm to recover a one-half undivided interest in and to the S. Y2 of the S. W. % and the N. W. of the S. W. Yi of section 25, township 21 N., range 8, and also in and to all of the oil or the proceeds thereof that has been taken from the above-described land. Paragraph 2 of this agreement recites that—

“The fee for such service has been and is hereby fixed at seven-eighths of whatever is recovered by parties of the second part for the parties of the first part, whether it be land or oil taken from the land, the proceeds of such oil, or any other kind of property.”

Paragraph 1 of said agreement declares that the heirs of Jerry Lewis have sold, transferred, and delivered unto the members of said law firm “a soven-sixteenth undivided interest in and to” the property described in said paragraph. In paragraph 4 of said agreement the parties of the second part, or either of them, are appointed as the true and lawful agents and attorneys of the parties of the first part, and given full and complete power “to sell or lease for them at such prices and on such terms as they or either of them may fix or determine, in part or all of the property covered by this contract, when the same shall have been recovered by parties of the second part for the parties of the first part, as fully and completely as though acting for themselves.”

On February 10, 1921, the heirs of Jerry Lewis expressly accepted his succession pure.ly and simply in a petition filed in the Third judicial district court, and prayed that they be sent into possession of the property composing his succession, which .they alleged to consist in part of the decedent’s undivided one-half interest in and to the N. W. % of the, S. W. 14 and S. Yt of S. W. % of .section 25, township 21, range 8 west, averring that said, property belonged to the community existing between him and Alice White, his second wife, whom he married on or about April 6, 1904.

On February 12, 1921, a judgment wás signed recognizing said heirs as the only children and sole heirs of Jerry Lewis, deceased, and sending them into the possession of the said property.

On February 12, 1921, the heirs of Jerry Lewis, duly recognized as such and sent into the possession of his estate, conveyed to Mrs. Rowena O. Otis, wife of William -A. Otis, residents Of the city of Colorado Springs, state of Colorado, an undivided one-half interest in and to the N. W. % of the S. W. % and S. % of ,S. W. % of section 25, township 21 N., range 8 W., with all buildings and improvements thereon, for a consideration recited in the deed to be the sum of $3,000 cash.

The petitioners allege that the community existing between Jerry Lewis, the father of their vendors, and his second wife, Alice Lewis, acquired the lands in dispute in this case by purchase from Dr. J. W. Feather-stone on January 13, 1910, as shown by deed of said date passed before E. H. Fortson, deputy clerk and notary public, and duly recorded in the conveyance records of the parish of Claiborne.

The bone of contention in this case between plaintiffs, on the one hand, and Alice Lewis and defendant company, her lessee, on • the other hand, is whether this property belonged to the community of acquets and gains existing between Alice White and Jerry Lewis, or whether said property constituted her separate and paraphernal estate. In order to determine this question justly and intelligently, we have at great pains set forth the various deeds, agreements, and proceedings relating to the status and title of the land in controversy in this case.

The record before us shows clearly that Dr. J. W. Eeatherstone purchased this property from Alice White March 12, 1908, under the unauthorized power of attorney of date March 11,1908. We find a copy of this power of attorney on page 76 of the transcript, with the following notation in brackets immediately beneath it:

“[Then follows the deed which will appear on page 81, under mark of defendant ‘D’ and plaintiff ‘Z.’]”

Referring to page 81 of the Transcript, we find this power of attorney forming the preamble, as it were, of the act of transfer from Alice Lewis to Dr. Eeatherstone. This power of attorney and this act of sale form one continuous instrument, and, in addition to this, this power of attorney is identified with the act by the following recital in the deed:

“This day personally came and ‘appeared Alice Lewis, by Frank White, as per power atty. attached, and Prank White for himself,” etc. (Italics ours.)

Alice White was not authorized by her husband, Jerry Lewis, to execute this mandate, as shown upon its face; nor did Jerry Lewis, the husband of Alice White, join her in the deed for the purpose of authorizing her to alienate her separate property. This power of attorney and deed were filed for record as one instrument March 14, 1908, as shown upon the face of the copies in the Transcript, pp. 76 and 81.

The sale by Alice White of her paraphernal property to Dr. Featherstone on March 12, 1908, without the authorization of her husband, was illegal, it is true, but it was a relative nullity which could be barred by the prescription of five years under article 3542 of the Civil Code, providing that actions for the nullity or rescission of contracts, testaments, or other acts are prescribed by five years. This prescription runs from the date of the dissolution of the marriage, and is specially pleaded by plaintiffs in this case. Brownson v. Weeks, 47 La. Ann. 1042, 17 South. 489 ; Vaughan v. Christine, 3,La. Ann. 328 ; Lafitte v. Delogny, 33 La. Ann. 659 ; Munholland v. Fakes, 111 La. 931, 35 South 983 ; Doucet v. Fenelon, 120 La. 18, 44 South. 908 ; Hamilton v. Hamilton, 130 La. 302, 57 South. 935 ; Jackson v. Currie, 144 La. 89, 80 South. 210.

Jerry Lewis died on the 20th day of January, 1916. The petition in this suit was filed February 24, 1921, the answers on April 14, 1921, and the amended answer pleading the want of authorization was filed May 9, 1921; all of the proceedings being after the lapse of five years from the date of the death of the husband. It follows, therefore, that the plea of prescription is well founded and must be sustained. The want of authorization by her husband to execute the act of sale to Dr. Featherstone therefore is not available as a defense by defendants.

All property purchased during the existence of the dommunity in the name of the wife is presumed to belong to the community, and, in order to rebut this presumption, the wife must show with legal certainty: First, 'that the price was her paraphernal funds; second, that it was administered by her; third, that it was invested by her. Civil Code, 2402; Stauffer v. Morgan, 39 La. Ann. 632, 2 South. 98 ; Bachino v. Coste, 35 La. Ann. 570 ; Pearson v. Rieker, 15 La. Ann. 119 ; Knoblock v. Posey, 126 La. 610, 52 South. 847 ; Fisher v. Gordy, 2 La. Ann. 762 ; Shaw v. Hill, 20 La. Ann. 531, 96 Am. Dec. 420 ; Davidson v. Stuart, 10 La. 148 ; Dominguez v. Lee, 17 La. 296 ; Block v. Melville, 10 La. Ann. 784.

The record is barren of any evidence in this case to rebut the presumption that the property conveyed by Dr. Featherstone' to Alice White on January 15, 1910, and purr-chased by her with the consent of her husband, by authentic act, did not belong to the community of acquets and gains existing between Jerry Lewis and Alice White at the time of his death.

' Defendants in their answer attack the act of sale to plaintiffs from the heirs of Jerry Lewis as a simulation. They aver that plaintiffs are without any actual interest or right to prosecute this suit, and are merely parties interposed. The testimony in the case, in our opinion, rebuts these contentions.

Defendants also charge that the power of attorney of date March 11,1908, under which the property in dispute in this case was conveyed to Dr. Featherstone by Alice White, is a forgery; and, if not a forgery, they allege, in the alternative, that said conveyance ■was intended as a mere pignorative agreement to secure a debt due by Frank White to Dr. Featherstone, and that when Dr. Feather-stone ascertained that said power of attor-’ ney had been executed without the knowledge or consent of Alice White, he voluntarily retroceded to her the property, and accepted a mortgage on same as security for a note due by Frank White to him.

The testimony fails' to show that said power of attorney was forged. The- parol testimony offered to prove that said act of transfer, authentic in form, and evidencing upon its face an unconditional sale for valuable consideration, was intended as a mere mortgage -or security for debt, was timely objected to, and was clearly inadmissible for such purpose, especially against plaintiffs, who are third persons purchasing upon the face añ'd faith of the public records. The defendants allege neither fraud nor error as a basis for the contradiction of the recitals of said act of sale. They merely charge that the power of attorney was forged, 'and failed to sustain this allegation by sufficient proof. The rule is unbending that in order to contradict the recitals of a written deed by parol evidence, error or fraud must be alleged and proved:, Salmen Brick Co. v. Peterson, 121 La. 528, 46 South. 616 ; Jackson Brewing Co. v. Wagner, 117 La. 878, 42 South. 356.

Nor is parol evidence admissible to show that a sale was intended as a mortgage, even when the vendor remains in possession. Franklin v. Sewall, 110 La. 292, 34 South. 448 ; Cary v. Richardson, 35 La. Ann. 505 ; Mulhaupt v. Youree, 35 La. Ann. 1052 ; Tutorship of Hacket, 4 Rob. 291.

It is the settled jurisprudence of this state that where the owner of land, uninfluenced by fraud or error, vests the title thereto in another, such title can be divested only upon the production of a counter letter, or upon the basis of answers to interrogatories propounded to the apparent owner. Maskrey v. Johnson, 122 La. 701, 48 South. 266 ; Breaux v. Royer, 129 La. 894, 57 South. 164, 38 L. R. A. (N. S.) 982 ; Pfeiffer v. Nienaber, 143 La. 601, 78 South. 977.

A plea of estoppel is also set up in the answers of defendants. It is based upon the ground that plaintiffs and the heirs of Jerry Lewis are barred from claiming the property in this case, because plaintiffs and their vendors knew that the said property did not belong to the community existing between Alice White and Jerry Lewis, as the public records showed in the partition of the estate of Jerry Lewis between his heirs and Alice White, his surviving widow, that only 55 acres of land in a different section was included as the property belonging to his succession; and because Alice White has remained as owner in the actual possession of the property in dispute since the death of her husband, without the heirs of Jerry Lewis disturbing her in such possession by any adverse claim of ownership. The fact that the record may show that the property claimed in thi¿3 suit was not partitioned as belonging to the succession of Jerry Lewis is not a record fact indicating that his heirs had no title to the property in controversy, as the fact that they had such interest clearly appears upon the face of the recorded deed from Dr. Peatherstone to Alice White, who was duly authorized to purchase said property by her husband, and said deed contains no recital to show that the property was acquired by her as her separate estate.

In the case of Gonsoulin et al. v. Sparrow, 150 La. 108, 90 South, p. 528, we said :

“That innocent third parties who deal on the faith of the public records are protected thereby is a question no longer open to discussion, as it is the settled jurisprudence of this state.”

, Mr. Justice Provosty, concurring in that decision, said:

“By the decision in McDuffie v. Walker, 125 La. 152, 51 South. 100, this court settled the at one time vexed question as to whether a third person can acquire a good title from the owner of record even though knowing this owner not to be the true owner. That view has since been repeatedly reaffirmed.”

Good faith is presumed, and we find nothing in the record to impugn the good faith . of the plaintiffs. They are therefore entitled to recover on the strength of their' title.

, It is therefore ordered, adjudged, and decreed that the judgment appealed from be annulled, avoided, and reversed, and it is now ordered, adjudged, and decreed that the petitioner Mrs. Rowena O. Otis- and the petitioner William A. Otis, her husband, and the community existing between them as husband and wife, be and are hereby decreed to be the true and lawful owners of an undivided one-half interest in and to the following described property, to wit: Northwest quarter of southwest quarter (N. W. % of S. W. %) and south half of southwest quarter '(S. Vs of S. W. %) of section twenty-five (25), township twenty-one (21) north, range eight (8) west, situated in the parish of Claiborne, state of Louisiana, together with an undivided one-half interest in and to all oil heretofore taken from said property by the defendants Alice White and the Texas Company. The right of petitioners and of the community existing between them as husband and wife to recover against defendants Alice White and the Texas Company in solido one-half of the value of all oil heretofore taken by said defendants from said property is hereby expressly reserved and recognized. The appellees to pay the costs of this appeal.

O’NIELL, J., dissents.

ST. PAUL, J., concurs in the decree.

On Rehearing.

ROGERS, J.

The facts of this case are correctly set forth in our former opinion handed down herein. The issue to be determined from these facts, and the law applicable thereto, is whether the real estate in controversy was the separate and paraphernal property of Alice Lewis, one of the defendants, or whether it belonged to the community existing between her and her first husband, John R. White.

It is contended, however, on behalf of plaintiffs, that this issue should be considered and determined in their favor upon their pleas of estoppel and prescription. It is therefore necessary to consider and dispose of these pleas before passing to the merits of the case.

The first estoppel urged against defendants is the one which it is claimed arises from the allegations in the answers of the forgery of the power of attorney to Prank White, which is the basis of the pretended transfer from Alice Lewis to Dr. Peatherstone. Plaintiffs argue that this is a special defense which cuts off the defendants from all other defenses, and in support of their argument cite article 326 of the Code of Practice, which reads:

“The defendant, whose signature shall have been proved after his having denied the same, shall be barred from every other defense, and judgment shall be given against him without further proceedings.”

They also cite a number of authorities based upon the article, including the case of Smith v. Union Sawmill Co., 120 La. 599, 45 South. 519, holding that its provisions were equally applicable where the document is being urged by way of defense.

It will hardly be contended that the rule stated in the text of the article can be successfully .invoked against the defendant Texas Company, since it is not the signature of that company which is in dispute. The penalty of the statute is only incurred by the litigant who denies the signature alle'ged to be his. Bradford v. Cooper, 1 La. Ann. 325 ; Bayly & Pond v. Givens, 29 La. Ann. 546 ; Mutual National Bank v. Richardson, 33 La. Ann. 1312.

Nor, in our opinion, is the law stated in the article applicable- to the other defendant, Alice Lewis. The so-called signature to the power-of attorney of March 11, 1908, is attached by “mark” witnessed only by the party designated as agent in the instrument.

Article 326 of the Code of Practice is one of three articles in pari materia. The others are articles 324 and 325, which read as follows:

“Art. 324. When the demand is founded on an allegation, or an act under private signature, which is alleged to have been signed by the defendant, such defendant shall be bound in his answer to acknowledge expressly or to deny his signature.
“Art. 325. If the defendant deny his signature in his answer, or contend that the same has been counterfeited,'the plaintiff must prove the genuineness of such signature, either by witnesses who have seen the defendant sign the act, or who declare that they know it to be his signature, because they have frequently seen him write and sign his name.
“But the proof by witnesses shall not exclude the proof by experts or by a comparison of the writing, as established by the Civil Code.”

It is clear from the language of the articles themselves that they apply only to cases in which the parties affected by their provisions are able to write and sign their names. Article 324 refers to an “act under private signature, which is alleged to have been signed by the defendant,” and requires the said defendant “to acknowledge expressly or to deny his signature.” (Italics ours.)

Article 345 is elaborate in its details as to the manner and method in and by which plaintiff “must prove the genuineness” of the signature when it is denied by the defendant, (1)- “eithgr by witnesses who have seen the defendant sign the act;” (2) “who declare that they know it to be his signature, because they have frequently seen him write and sign his name;” (3) by “proof by experts ;” and (4) “by a comparison of the writing.”

When a party who is unable to write or sign his name executes a document by attaching his mark, he does not sign his name thereto; he affixes his mark to the document. While the mark properly affixed and witnessed may have the same effect as a signature of the name, the fact, nevertheless, is that it is not a name but is a mere arbitrary sign or symbol, which, standing by itself, is incapable of identification or of proof.

The rule stated in the articles of the -Code of Practice is based upon the theory that a person who is able to Write and sign his name, and who has a well-defined and characteristic signature, is in a position to determine whether a document alleged or produced against him bears his signature or not. There is no reason, in law or logic, requiring the application of the same rule in a case where the mark of a person unable to write his name is used as a substitute for his signature. The distinction becomes more apparent, and the argument more convincing, upon consideration of the manner and method provided by the Code of Practice (article 325 thereof) itself for the proving of the repudiated signature. How can it be said that a “mark” can be proved by witnesses who have seen the defendant sign the act, or who know the signature represented by it because they have frequently seen the party sign his name, or proved by experts or by comparison of handwriting? A mark has no earmarks, nor definite points, nor outstanding features or characteristics which would enable a litigant to prove or identify it in the manner provided for in the statute.

Plaintiffs’ plea of prescription is founded upon the provisions of article 35£2 of the Civil Code, providing that actions for the nullity or rescission of contracts, testaments, or other acts are prescribed by five years.

The pivotal one of the several transactions before the court for review is the pretended deed of sale of March 12, 1908. This instrument was executed without the authorization of the husband of the vendor. In our former opinion herein we held that the absence of the husband’s signature stamped the deed with nullity, but that inasmuch as the nullity was relative only, defendants were barred from asserting the nullity by the prescription pleaded by the plaintiffs.. The ruling of the court was based upon the assumption that the prescription invoked began to run from the dissolution of the marriage of Alice White and Jerry Lewis by the death of the latter. 'The ruling would be correct if Alice Lewis had been out of possession of the property during the prescriptive period, and had sought, in a direct action, the annulment of the pretended deed; but in view of the proven' fact that she has always been in possession of the property, both before and since the date of the instrument, and as she is urging its illegality by way of answer or exception to plaintiff’s suit, the holding is erroneous.

Defendant Alice Lewis, being always in possession of the property, had the absolute right to either take the initiative and to sue to rescind and annul the sale for want rf the authorization of her husband, or to Stand indefinitely upon her possession and on the defensive with the privilege of asserting the illegality of the sale by way of exception and answer at any time she might be sued by the alleged purchaser for the delivery of the property. This principle of law finds expression in the maxim, “Quse temporalia sunt ad agendum, perpetua sunt ad excipiendum,” and is, also, embodied in article 20 of the Code of Practice, reading:

“Pie who has a right of action to claim what is due to him, has a right yet more evident to use the same cause of action as an exception, in order to preserve his rights.”

This is a fundamental rule of the civil law, which is extended even to the case where defendant may, as in the instant case, by exception or answer set up his cause of action as a defense, though it be prescribed. Delahoussaye v. Dumartrait, 16 La. 91 ; Thompson v. Milburn, 1 Mart. (N. S.) 468 ; Davenport v. Fortier, 3 Mart. (N. S.) 695 ; Bushnell v. Brown Heirs, 4 Mart. (N. S.) 499 ; Lafiton v. Doiron, 12 La. Ann. 164 ; Davis v. Millaudon, 14 La. Ann. 868 ; Lestrapes v. Rocquet, 23 La. Ann. 68 ; Hamilton v. Moore, 136 La. 634, 67 South. 523.

The second estoppel urged against defendants is the one which it is claimed arises from the execution of the deed of January 13, 1910, from Dr. Featherstone to Alice Lewis; it being asserted and argued on behalf of plaintiffs that said deed constituted a ratification by the vendee of the act of March 12, 1908.

We’ do not view the transaction in that light. The purpose of the act of January 13, 1910, was to put back into the name of Alice Lewis property which had been taken out of her name by an act which was recognized by the parties thereto as being illegal. Dr. Featherstone did not intend to acquire the property from Alice Lewis, nor did Alice Lewis and her husband intend to convey the property to Dr. Featherstone. This is not only shown by the testimony, but it is borne out by the fact that simultaneously with the execution of the retransfer to Alice Lewis, she, ■with the authorization of her husband, granted a mortgage on the property in favor of Dr. Featherstone to secure a note of her son, Frank White, being a part of the indebtedness growing out of the act of March 12,1908. Obviously, it was not the purpose to vest title to the property in the community existing between Alice Lewis and Jerry Lewis. The purpose was to undo what had theretofore been illegally done, and to restore the status quo prior to the execution of the deed of March 12, 1908.

In order to execute a voluntary ratification the act must be executed with the intention to confirm and ratify, and must evince such intention clearly and unequivocally. No ratification will be inferred where the act can be otherwise explained. Article 2272, Civil Code; Decuir v. Lejeune, 15 La. Ann. 569 ; Gillespie v. Twitchell, 34 La. Ann. 288 ; Breaux v. Sarvoie, 39 La. Ann. 243, 1 South. 614. And in the Succession of Troxler, 46 La. Ann. at page 749, 15 South. 153, applying the law to voluntary confirmation, it was said by this court:

“As between the parties to transactions whose legality is fairly debatable, the doctrine of ratification should not be too rigidly applied. Light should be permitted to be thrown in as far as possible in aid of right.”

The pleas of estoppel and prespription filed by plaintiffs having been thus disposed of adversely to their contentions, brings us to the consideration of the issue of the case as set forth at the outset of this opinion.

Considering the ease from one of its many angles, wTe find it to be fully established by the evidence that Alice Lewis did not acquire the property by purchase from Dr. Featherstone under the deed of January 13, 1910, but that the instrument was a mere retrocession of the property as if the act of March 12, 1908, had not existed. It cannot be considered as a purchase made during the marriage, as it came back to Alice Lewis in the same manner as if the deed of March 12th had been judicially rescinded. By this instrument Dr. Featherstone performed voluntarily that which Alice Lewis could have judicially compelled him to perform. Fulton v. Fulton, 7 Rob. 74 ; Succession of Packwood, 12 Rob. 366 ; Chretien v. Richardson, 6 La. Ann. 3.

Considering the case from another angle, inasmuch as the deed of March 12, 1908, was not authorized by Jerry Lewis) husband of Alice Lewis, the deed was defective and conveyed nothing to Dr. Featherstone, and as he had no title to the property and could not transfer to Alice Lewis any greater right than he had, his deed transferred nothing,, and the title still remained in Alice Lewis, under her original purchase from the New. England Mortgage Security Company, on January 1, 1896. And, further, as Alice Lewis was already the owner of the property, the act of March 12, 1908, being defective and conveying nothing, she could not validly purchase her own property from Dr. Feather-stone, even if, through error, she thought she ■was purchasing his property. Article 2443, Civil Code; Scott v. Leonard, 106 La. 317, 30 South. 841 ; Alderson v. Sparrow, 16 La. Ann. 227.

In our former opinion we held that as good faith was presumed, and as there was nothing in the record to impugn the good faith of the plaintiffs, they were in the position of innocent third persons dealing upon the faith of the public records, and were entitled to recover on the strength of their title. We were in error in so holding. All that plaintiffs acquired were the rights, whatever they might be, of the heirs of Jerry Lewis in the property in controversy, plus a law suit to establish those rights. They do not show that 'they acquired from a derivative title of record in the name of their vendors or of Jerry Lewis, the father of their vendors, but they rely solely upon the record of the ex parte judgment of possession rendered in the succession of Jerry Lewis. The^ looked no further, and apparently cared to look no further, than these mortuary proceedings. Yet one is bound to ascertain the nature of the title of the property which he seeks to purchase (Augusta Ins. Co. v. Packwood, 9 La. Ann. 74), and in looking up titles is held to examine the same act by act and mortgage by mortgage (Layman v. Vicknair, 47 La. Ann. 686, 17 South. 265). Had this rule been followed by plaintiffs, they would have ascertained from an inspection of the record that there was no title standing in the name of Jerry Lewis and none in the name of the heirs from whom they purchased. They would have learned that in the deed from Dr. Featherstone the description of the property was followed by the words, “being the same property acquired by this vendor from the vendee heretofore,” which notation would have served to put them on notice that the vendor was retransferring to a married woman property which he had previously acquired from her, and by a further inspection of the record they' would have ascertained that the title was especially defective'in that the act of March 12, 1908, was executed under a power of attorney dated March 11, 1908, purporting to have been executed by the constituent, but without the authorization of her husband, < and would have acquired the additional information that the property in question was unquestionably the separate and paraphernal property of Alice Lewis purchased by her before her marriage to Lewis. They would have been put upon inquiry as to the effect of the apparently indirect method adopted of transferring to the community the paraphernal property of the wife by means of a transfer by her to a third person and by that third person back to her.

Conceding the validity of the sale by Featherstone to Alice Lewis, plaintiffs were still required to ascertain, at their peril whether the property was the separate property of the wife or the property of the community, and are not protected by the codal provisions that property purchased during the marriage is presumed to belong to the community. The purchases by the husband as head and master of the community are not to be confused with the purchases by the wife in her own name. The purchase in the latter case being an unusual transaction, puts the public on guard as to the title, and accords the wife the right when her title is attacked to show that the purchase was in fact made with paraphernal funds under her administration, and that the property is her separate and paraphernal property. And this is so whether the investment of the paraphernal funds of the wife appears in the act or not. Metcalf v. Clark, 8 La. Ann. 286 ; Succn. of Burke, 107 La. 82, 31 South. 391 ; Succn. of Pinard v. Holten, 30 La. Ann. 167 ; Clarke v. Lassus, 128 La. 919, 55 South. 576 ; Henderson Iron Works & Supply Co. v. Highouse, 141 La. 803, 75 South. 729.

Had the plaintiffs used but ordinary care and diligence in having the records searched, they could have easily ascertained the defects in the title and that they could not acquire the property from the heirs of Jerry Lewis for the simple reason that these heirs had no right, title, or interest in said property.

Nor for a further reason can the plaintiffs be considered as innocent third persons purchasing in good faith. Their very act of purchase in express terms shows that they were purchasing a litigious right; that they were acquiring with knowledge that the title was in dispute and that they would have to resort to a lawsuit to establish their ownership. Hence, they acquired no greater right than their vendors had. One who buys property with knowledge that the title is in dispute is not an innocent purchaser-; hence has no greater right than his vendors had. Ledoux v. Burton, 30 La. Ann. 576 ; Walling Heirs v. Morefield, 33 La. Ann. 1174 ; Breaux-Renoudet Cypress Lumber Co. v. Shadel, 52 La. Ann. 2098, 28 South. 292.

For the reasons herein assigned, it is ordered, adjudged, and decreed that the former decree of this court reversing the judgment appealed from be set aside, and it is now ordered, adjudged, and decreed that the judgment appealed from be affirmed at the cost of the plaintiffs and appellants.

LAND, J., concurs in decree.  