
    
      DAVIS’ HEIRS vs. PREVOST'S HEIRS.
    
    Appeal from the court of the fifth district.
    Whether the vendee can recover land, which the vendor, before the sale, has sworn to belong to the persons in possession?
    The petition stated that the plaintiffs are the just and legal owners of a tract of land of sixty arpents in front, on the western side of bayou Teche, with the depth of forty-two arpents; and they are prevented from enjoying the same by the defendants, who have entered and taken possession of the same, &c.
    The defendants pleaded the general issue, the prescriptions of thirty years and ten years.
    Macarty’s heirs called in warranty, as vendors of the defendants, pleaded that the defendants have a good title to the land, which was purchased upwards of thirty years ago by their ancestor from V. Lesassier; and the said Lesassier, their ancestor and themselves have possessed the same for upwards of thirty years—that the plaintiffs, and those under whom they claim, appear by the petition to have owned the premises for upwards of forty years, and never before asserted their title— that these warrantors, their ancestor and the defendants have possessed, with a good title, for upwards of ten years.
    West'n District.
    
      Sept. 1822.
    There was judgment for the defendants, and the plaintiffs appealed.
    The statement of facts shows, that the plaintiffs produced the grants from the Spanish government to C. Dugat, J. B. Dugat and J. B. Labauve for twenty arpents in front each, with the depth of forty-two, and conveyances from the heirs of said grantees to the widow and heirs of De la Houssaie, and conveyances from the said widow and heirs to the plaintiffs’ ancestor, which, it is agreed, composed a part of the statement of facts.
    It is admitted that the several persons above mentioned are the heirs of those whose heirs they are represented, and the land in the grant is now occupied by the defendants and claimed by the plaintiffs.
    
      The record of the suit of Johnson & al. vs. Prevost's heirs, 9 Martin, 128, is to be read in evidence.
    The defendants offered a deed of exchange between the Dugats and Labauve with De la Houssaie, also an affidavit of the latter in the land office of the United States.
    It is admitted that the land claimed by the warrantors' ancestor, at the chicot noir, and sold to the defendants, is the same as that mentioned in the plaintiffs, original grants.
    The plaintiffs opposed the admission of De la Houssaie's affidavit, and their right of exception, is preserved to them.
    Moreau, for the defendants.
    As we are in possession, and have been so, for upwards of a year before the inception of the suit, (March 15, 1819,) we must be maintained; unless the plaintiffs, by the production of a good title, prove themselves the real owners. Civil Code. 478, art. 24. Domat, 1, 3, 7 sect. 1. n. 15. Recop de Cast, 4, 15, 3.
    We have also pleaded the prescription of 10, 20, and 30 years.
    As the plaintiffs seek to avail themselves of the same prescriptions, it is proper to notice the difference between the prescription ad liberandum, which we invoke, and the prescription ad acquirendum, which the plaintiffs plead. 9 Merlin, Repert. verbo Prescription, 480. Laperte, 1 & 2. 1 La sala, 121, n. 10.
    The prescription of actions was unknown to the Romans, under the Institutes and the Digest. It was introduced by the emperors. Inst. 4, 12. in princ. ff. 41, 2, & 3. 6 Hulot, 292, 319.
    The first notice of prescription of actions is in the Code 2, Clef des lois Rom. 364. It appeared so just, that the emperor authorized it, even against the claims of the fisc. Code 37, 7, 3. 3 Hulot, 226-228.
    Civil actions between individuals, are rescribed by 30 years, as well in cases in which an universality of things is claimed, as in special real actions.—Id. 7, 39, 3.
    In Spain, every civil action is prescribed by the lapse of 30 years. Part. 3, 29, 21.
    By a subsequent law, which Ferrari says, is the 3, 13, of the ordinamiento real, the prescription of real action was reduced to 20 years, 7 Bibl. n. 30, 295, verbo Prescription.
    
    Lastly, in the Recopilation de Castilla, 4, 15, 6, which is only a repetition of the 63d law of Toro, actions merely personal are prescribed by 20 years; real ones by 30.
    
      Such is the jurisprudence of Spain, in regard to the prescription of actions. Yet none of the laws cited, speak of the prescription of real actions; but the most esteemed Spanish writers teach, that it is regulated by the Roman law, and is of 30 years. Code, 7, 39, 3. 2 Gomez, 436, in notis. 1 Derecho Real de España. Sala 2, 2, n. 1. 7 & 8 Ferrari's Bibl. verbo Prescription, n. 30, 295.
    The prescription of actions may be invoked in Spain, against any pecuniary claim, but not against that of any right to moveable or immoveable property.—Ferrari, Loco citato.
    
    The present action is a demand of revindication of immoveable property, and is prescribed by thirty years. Pothier, Propriete, 2. 1, in the preamble. It is a real action. Id.
    
    It suffices that we should show a possession of more than one year; unless a good title be produced by the plaintiffs. Civil Code, 478, art. 34.—A title prescribed against is not such.
    Even if the 30 years, which had elapsed since those under whom the plaintiffs acquired their title, at the inception of the present suit, had not the effect of destroying their right, which they suffered to sleep for so long a time, the defendants would have acquired the premises by their possession, with a just title for upwards of twenty years.
    The just title is defined Partida. 3, 29, 18. Civil Code, 488, art. 68. La Porte des Prescriptions, ch. 3.
    This just title the late J. B. Macarty acquired by the deed of sale, executed by Mad. Lessassier in 1780, and his heirs transmitted it to the defendants’ ancestor, in 1809.
    The defendants, being unable to produce Mad. Lessassier’s deed, ought to be allowed to show what it contained by parol proof. They cannot be required to produce evidence of the vis major, which occasioned its loss; because this evidence is an innovation of the Code Civil, and a consequence of its requiring that the sale of immoveable property and slaves be written.—Civil Code, 344, art. 2, & 247, art. 12.—This was not required, by the laws then in force in Louisiana, when Macarty lost or mislaid the deed of Lessassier, executed in 1803. Sales of any kind of property might be oral—Febrero, adicionado, 1, 10, § 1, n. 19; Part. 3, 14, 8,—and when a sale was made in writing, it was with facility admitted to be proven by parol, in case of its loss.
    
      It was required, that the loss of the instrument be alleged to have happened at a time when no suspicion attached; and that the writing should be of a nature to be lost, without any vis major; as one under private signature, a note of hand, which is often carried about one’s person, and from one place to the other.
    As to the allegation of the loss of Lessassier’s act of sale, it appears by a petition of J. B. Macarty, to the intendant, as early as 1803; that he then stated its loss, and prayed that his right might be established by the list of taxes, in which he was charged as the owner of the land. He mentions, that the loss happened in Pedesclaux's office.
    This petition does not form a complete legal proof of the loss of the paper; but it establishes the allegation of it, at a time not at all suspicious. The decree of the intendant, of the 16th of July, 1803, on this petition, shows that this petition is not a paper prepared for use in the present action. J. B. Macarty, at the time, could not suppose that the existence and contents of this act of sale could be contested by any but Lessassier’s heirs. The recognitive title, which he acquired from Mad. Lessassier, put him perfectly at ease on this head.
    
      It appears from Judice’s deposition, 9 Mart. 128, that the act of sale was executed in the Attakapas; it is a matter of notoriety, that J. B. Macarty resided on his plantation, near New-Orleans; it is therefore probable, that he brought it to the city, and lodged it with the notary, for registry. Judice says, the sale was a public sale, and was executed before Declouet, the commandant. In this, the memory of the witness is incorrect. The archives of the office have been carefully searched, and no trace of such a sale can be discovered.
    The declaration, under oath, of Mad. Lessassier, in her recognitive act, establishes the fact, that her husband's sale was a private one. The plaintiffs urge, that her declaration, being ex parte, makes no legal proof against them; yet, they require us to admit, as legal evidence, the allegations contained in the recognitive acts of the heirs of Dugat and Labauve, in the year 1817, relating to the existence and contents of a deed of exchange, alleged to have been executed thirty years before, between L.P. De la Houssaie and Dugat and Labauve.
    It is not alleged, that the records or archives of the office of the Spanish commandant of the Attakapas, were destroyed, nor any part of them lost: this circumstance must repel the allegation, that the sale of Lessassier to Macarty was a public one, executed before that officer; since no trace of it appears.
    The defendants ought to be allowed to establish this sale by parol evidence.
    1. Because they have proven by the testimony of Leblanc and Judice, that this act once existed, and was executed in 1780, or 1781. 9 Martin, 128.
    2. Because they have shown by those of Frelot, Carlier, Decuir, Leblanc, and Berard, Id. 126-131, that the tract sold by Lessassier to Macarty, is in the place commonly called the Chicot noir; and had 80 arpents in front, with the ordinary depth on each side of the stream.
    Were we to produce the sale from Lessassier to Macarty, it would be legal evidence of the sale, and of the contents of the tract. Were we to produce a declarative act, given by the vendor to the vendee, to supply the loss of the original, it would be legal evidence, if the sale was there especially and particularly related, as it is in Mad. Lessassier's deed.—Civil Code, 308, art. 237. Pothier 
      
      Obligations, 742, 743.—This being admitted, the latter deed ought to have the same effect; because the recognition of a primordial title by the heir, has the same effect as that of the ancestor.—Id. 742 ad finem.
    
    It is urged, that the lady’s deed ought not to have any effect, because it is not there stated that her husband was dead ; because she had no title or right to the premises; and she does not appear to have had any authority to act for the heirs of her husband.
    The death of Lessassier sufficiently appears from the deed ; for the grantor mentions, that she acts in the name of, and for his heirs—and nemo est hæres viventis.
    
    As the widow, she might well confirm the sale of a tract of land, part of the community of goods, which had subsisted between her and her husband. We need not show, that it had been purchased during the marriage, because all the property, which either party possesses, are presumed common. Recop. de Castille, 5, 9, 1. Civ. Code, 336, art. 67. Judice's deposition, however, establishes the fact of the purchase during the marriage. It is there sworn, that Lessassier, his wife and the witness came together to the Attakapas, where Lessassier bought the land at Chicot noir, which did not please his wife, and he sold it to Macarty. 9 Martin, 128.
    The ratification of the sale by Mad. Lessassier is certainly good for the one-half which she had, as common in goods with her husband, in a tract of land purchased during the marriage. It may also avail for the other half, as she ratified in the name of the heirs of her husband. One may validly stipulate or promise for a third person, without any authority from him; and the convention is valid, if this third party ratify it.—Code Civ. 262, art. 20— Domat, 1, 1, 1, sec. 2, n. 6—Pothier, Obligations, n. 75. The silence of these heirs during so long a period, is presumptive evidence of their ratification. They alone could plead the nullity of the deed, Relative nullities, those which concern only a third party, do not render the instrument void, ipso facto; but only voidable, on the application of the party in whose favour the law introduced them.—8 Merlin, Repert. 60, verbo Nullite ; Melançon's heirs vs. Duhamel, 10 Martin, 225.
    J. B. Macarty did not rest satisfied with the civil or symbolic possession, resulting from his title, he took actual and corporeal possession. Pothier, Possession, 39, 41 & 55.
    
      Bouté, Frelot, Decuir and Judice, declare that he made a settlement—9 Martin, 125-129.
    The actual possession of Macarty during several years, has preserved the civil possession in him and his heirs, till the sale of the latter to the ancestor of the defendants, (Pothier, Possession, 55 & 56) who, it appears, took possession five or six years before the inception of the suit of his heirs against Johnson and another; i. e. in the beginning of 1810—9 Martin, 126 & 127.
    Hence the defendants, and those under whom they claim, having possessed upwards of thirty years, under the sale of Lessassier, and the recognitive deed of his widow, repel the claim of the plaintiffs, by the prescription longissimi temporis.
    
    It cannot be urged, that the defendant's ancestor did not take actual and corporeal possession of every part of the tract, on both sides of the stream by enclosures ; for he was not an usurper, but a vendee in good faith, to whom the vendor willingly yielded the possession of the whole; and the deed of sale shows, with great precision, what was sold, and consequently taken possession of. ff. 41, 2, 3, § 1. 6 Hulot, 296; Pothier, Possession, n. 41.
    
      It is not necessary to him who pleads prescription, to show that he, under whom he claims, was himself in possession. Pothier says, that the principle, that the taking possession of a part of an estate causes the possessor to acquire the possession of the whole is applicable to him who takes possession of an estate which the former possessor consents to abandon. Loco citato. We must not conclude, from these expressions, that it is necessary that the former possessor be in the actual and corporeal possession—civil possession suffices.—Pothier, Possession, n. 6.
    Lessassier had actual possession. Judice deposes, that he lived on it for upwards of two years, 9 Martin, 126; and he could yield possession to Macarty, his vendee. The possessor in good faith may avail himself of the prescription of 10, 20 or 30 years, although he should not have a good title. It suffices, that the former should possess during the requisite time. Partida, 3, 29, 18. Code Civil, 486, art. 67. It is true, that if the former possessor had a just title, the time he possessed may be added to the possession of his vendee. Part. 3, 29, 16. Code Civil, 484. art. 43.
    The defendants, their ancestor and their vendors have possessed under a just title for ten years. This suffices to repel the claim of the plaintiffs, as it is neither alleged nor shown, that either they, their ancestor, or De la Houssaie were absent from the state. Part. 3, 29, 18.
    The deed of Mad. Lessassier must be considered as a just title. It is evident, that she consented that Macarty should remain in possession of the land, sold him by her husband; and this consent operated as a symbolic tradition, which rendered him an actual possessor, and enabled him to prescribe from the date of the deed. Pothier, Possession, n. 43; Domaine, 1, 2, § 4.
    The plaintiffs have shown no title. It is not sufficient to show a grant to Dugat and Labauve: a transfer of it to De la Houssaie, under whom the plaintiffs claim, must be shown.
    They contend, that De la Houssaie obtained the land by exchange; but the original deed, which is said to have been the evidence of this exchange, is not produced. The exchange, however, is said to be proven by recognitive titles, to which the deeds of the heirs of Dugat and Labauve, in which it is stated that their ancestor, about thirty years before the dates of these deeds, had given the land, now claimed, in exchange to L. P. De la Houssaie, in exchange for another tract, on the spring of the large island of the Attakapas.
    The plaintiffs are willing to admit the evidence of the sale of Lessassier to Macarty, resulting from the recognition of it in the deed of the vendor’s widow, supported by her oath; because we are unable to prove the accident which occasioned its loss. Yet they wish us to dispense with the proof of the loss of the original deed of exchange.
    We have proven, however, that the heirs of Dugat and Labauve were under an error when they stated they had a perfect knowlege of this exchange. A deed, executed by L. P. De la Houssaie, and by Charles and Jean Dugat and B. Labauve, in 1794, establishes the fact that the land, at the Spring in the Attakapas, was exchanged, not for a tract on the Teche at the Chicot noir, but for a tract on the Vermillion. The description of the land, in this deed, puts it beyond a doubt that it was the same tract which is now holden to have been exchanged for that at the Chicot noir.
    
      We further contend, that if the exchange be really such as the recognition of the heirs of Dugat and Labauve state, it was modified or altered by a subsequent one.
    The proof of this fact results from the deed just mentioned, executed in 1794, which is inconsistent with the proposition that the tract which De la Houssaie gave in exchange, and which clearly appears to be the same which the heirs of Dugat and Labauve assert to have been so given about thirty years before the date of the deed, which contains their declaration, i. e. in 1787 or 1788, was still his property in 1794, when it is proven he exchanged it with the ancestors of these heirs for a tract on the Vermillion.
    It results further from an affidavit made by De la Houssaie.
    Macarty’s heirs having, in 1814, applied for the confirmation of their title to the land at Chicot noir, which De la Houssaie is said to have received in exchange from Dugat and Labauve, De la Houssaie made oath “that he knew the land at Chicot noir, claimed by Marine’s heirs ; he had considered it always, as all the neighbourhood did, as the property of the late J. B. Macarty.”
    
      This declaration of De la Houssaie is a formal denial of his having any right to the land, which much have the effect of destroying the proof that might otherwise result from the recognitive acts of the heirs of Dugat and Labauve, raising an insurmountable obstacle against any claim of his heirs through him.
    It is true, this declaration is an extra judicial confession ; but such confessions are most certainly irrefragable evidence, when made in the presence of him whose title is so acknowleged. Here the confession was made at the instance, and in the presence of Macarty's heirs, or their agents, who had brought De la Houssaie into the land office to make it, Part. 3, 14, 7—and such confession is valid against the heir of him who makes it—Pothier on Obligations. n. 63; for, if it destroy the right of the ancestor to the estate, it must equally affect that of the heir: otherwise the former would transfer a greater right than he himself had—ff. 50, 17, 54. If the heirs of De la Houssaie are bound by this confession of their ancestor, so must be the plaintiffs, to whom they transferred their rights.
    The plaintiffs contend, they are not bound by any act in which De la Houssaie denied he had any right on the land at Chicot noir, or by which he may have renounced such right; because the deeds executed to them, by his heirs, are authentic ones; and because they were ignorant of the existence of any act containing such a denial or renunciation.
    The plaintiffs, by the conveyance which they have received from the heirs of De la Houssaie, are the successors of these heirs, by a particular title; and they succeed to all the rights of their vendors. The estate, in their hands, must be liable to every charge to which it was liable, before the conveyance in the hands of the vendors—1 Merlin, Repertoire de Jurisprudence, 53, verbo Ayants cause ; 16 Pandectes Francaises, 1st edition, 147, ff. 14, 1, 20. in princ. 6 Hulot, 271.
    
      Hence Pothier teaches us, that when we stipulate for ourselves, we do so for our heirs, and for those who may acquire the thing, which is the object of the stipulation-Obligation, n. 67 & 68.
    Neither does the ignorance of the vendee, of the charges imposed on the thing sold, avail him. It only gives him an action against the vendor—Pothier, Vente, n. 86.
    Indeed, since laws have been enacted, requiring the inscriptions of certain privileges and mortgages, the vendor may avail himself of the neglect or omission of the provisions of these laws. But, cases like these, are exceptions to the general principle.
    The authenticity of the deeds, by which the plaintiffs acquired, cannot relieve them from the burdens imposed on the thing sold; because neither a public nor a private act can affect the right of third parties, not privy thereto.
    It will be, perhaps, urged, that this principle relates only to the acts imposing servitudes or charges of the like kind ; not to an act, by which the owner might have modified or altered his title, or destroying it, by acknowleging that another was the true owner.
    Had De la Houssaie entered with Macarty into a compromise, by which he would have acknowleged the title of the latter, or renounced his own—or if, in a suit between them, Macarty had put interrogatories to him, in answering which he would have acknowleged Macarty’s title; or if, without such interrogatories, he had, in the pleadings, made admissions which destroyed his own title, can it be doubted that such a compromise, such judicial answers, such admissions in the pleadings, could be successfully opposed to his vendee or that of his heirs, notwithstanding his allegation, that his deed of sale made no mention of such compromise, answer, or admission ; and that the vendor had suffered him to remain ignorant of them.
    The case would be the same, if the plaintiffs had purchased land, to which De la Houssaie or his heirs had suffered a title to be acquired by prescription, or of which he or they might have previously disposed by sale, exchange, or donation. This prescription, these deeds of sale, donation or exchange, would affect their title.
    The vendee’s title may not only be affected by the act of the vendor, anterior to the sale, but also by posterior ones. As if, after the sale and even the receipt of the price, the vendor was to sell and deliver the thing sold to the first vendee.—Pothier on Obligations, n. 151 & 152.
    The admission of De la Houssaie and his recognition of Macarty's title to the land claimed, must necessarily affect the right which the plaintiffs have acquired from his heirs. The effect of these admissions and recognition, can be weakened by proof only, that they were made through error; and this error must be one of fact.—Domat, 1, 1, 18 § 1, n. 1, 2, 6-9, 11, 13-17. Part. 3, 13, 5. But the error must be proven by him who alleges it.—ff. 22, 3, 19. 3 Hulot. 352; Part. 3, 14, 2.
    The plaintiffs ought then to have shown, that De la Houssaie was in an error, when in 1814 he declared, in the most solemn manner, that Macarty was the true owner of the land which they now claim; and consequently, admitted that he, De la Houssaie, had not any title thereto. This they did not attempt. Indeed, how can it be believed, that if De la Houssaie had been the owner of the premises, by virtue of an exchange in 1787 and 1788, with Dugat and Labauve, he could so far forget such an exchange, as to declare that Macarty was the owner of them? See the deposition of the chevalier De la Houssaie, 9 Martin, 129.
    The plaintiffs cannot find a new title, in the recognitive and confirmative acts of the heirs of Dugat and Labauve, different from any that might have been given by De la Houssaie. These heirs have only confirmed an exchange which they believed to have existed, and have granted no new right to De la Houssaie's heirs.
    What is contained in a recognitive act, beyond or differing from the primordial acts, cannot produce any effect.—Civil Code, 310, art. 345. Pothier on Obligations, n. 742-744.
    
      Bullard, for the plaintiffs.
    The plaintiffs have shown a title of the highest dignity known to our laws, in those from whom they claim, to the land in controversy. There is no evidence in the record, that the original grantees divested themselves of title in their life-time. Their heirs, who must have inherited the land under a mistaken idea, as it turns out, that their ancestors had exchanged it with De la Houssie, père. for a tract at the Grosse Isle, ratify and confirm that supposed exchange with the heirs of De la Houssaie. I say a mistaken idea, because it appears probable that the exchange alluded to, in the act of confirmation and ratification, was in fact of different tracts of land.
    If such were the real state of the case, it is evident the heirs of the Dugats and Labauve were still owners of the land by inheritance, and it is important to inquire what is the effect of the act of confirmation and recognition between them and the heirs of De la Houssaie? The defendants’ counsel contends, that it is an act purely recognitive, and being founded in an error of fact, is null absolutely ; that it can neither avail as a sale, because no price is mentioned; nor as a donation, because it is informal—and he cites Pothier on Obligations, n. 744.
    It is true, a title merely recognitive is not presumed to create a new obligation, or convey a new interest. But the intention of the parties is to be sought in the whole context of the act. Besides recognising and confirming the supposed exchange between their ancestors, they go on in the following terms:—et se font abandon reciproquement et pour toujours de tous droits, litres et pretensions sur la terre échangée.
    
    Now then, if the primitive title never existed, the heirs, in the full possession of their hereditary rights, abandon all their title and pretensions to the land in question, for and in consideration of the land at the Grosse Isle, which they acknowlege to have accepted in exchange—what more can be required to vest the title of the original grantees in the heirs of De la Houssaie?
    But it is said, here is an error of fact; the whole is a nullity, because the primitive title, referred to never existed. I reply, that even the heirs could not recover back the land on discovering such an error of fact, with the solemn abandonment of their rights and quitclaim of their title looking them in the face. They could not avail themselves of such an error in an act merely recognitive, and that the title vests in the heirs of De la Houssaie independently of the primitive title. Neither can a third person contest the title of the plaintiffs on the ground of error, so long as it remains unimpaired.
    The heirs of De la Houssaie, therefore, acquired a title to the land in controversy, independently of any supposed conveyance to their ancestor; they acquired as persons capable of such acquisition, and not affected by any acts or declarations of their father, in his lifetime, in relation to the property.
    But it is further contended that to make out a new title to the land under the act of recognition and abandonment, it is incumbent on the plaintiffs to prove what was the consideration paid. I had always supposed that such a question could arise only between the vendor and vendee, and that as to third persons, if the act did not avail as a sale, it would as a donation. 5 Mart. 693, Holmes vs. Patterson.
    
    Can a third person attack a sale on the ground of lesion, and collaterally exercise a right for another, which he might be precluded from doing himself, by the lapse of time or other circumstances. These principles appear to me so manifestly contrary to the spirit of our jurisprudence, and unsupported by the authorities cited, so far as they can operate in this case, that I will not trouble the court any longer on the subject.
    If the position I have assumed, and the construction I give to the contract between the heirs, be correct; if the heirs of the original grantees transferred to the heirs of De la Houssaie all the rights they held at the time, and it avails as a new title—what possible effect can the declaration of De la Houssaie, père, have in the decision of this case upon the question of title? To make the most of it possible, it only proves that he did not consider himself as the owner of the land; but surely it could not prevent his heirs from ever acquiring the land? It is probable he was not the owner. What does that prove? That the heirs of the Dugats and Labauve were still owners of the land by inheritance—and the question returns—Have they parted with their title and pretensions to those under whom the plaintiffs hold?
    But it is strongly urged by the adverse counsel, that the plaintiffs are barred by the prescription of 20 years. In order to avoid the necessity of proving, in this case, the unequivocal possession, by metes and bounds and enclosures, inch by inch, which this court has declared to be necessary, in order to sustain the plea of 30 years prescription without title, in the case of Prevost's heirs vs. Singleton & Johnson, 9 Martin, 129, the learned counsel endeavours to make a distinction between a limitation of actions, where the exception is made liberandi causâ. and the plea of prescription as a mode of acquiring title to the thing in controversy. It is contended that, by remaining silent during 30 years, or since the date of their grants to the inception of this suit, the plaintiffs have lost their right to sue any body who may happen to be upon the land; or, in other words, have forfeited the grants. This distinction, to the extent contended for, it appears to me, cannot be sustained. That the effect of the plea of prescription may be either to release or liberate the party from the performance of an obligation, or to give him a valid title to the thing against the plaintiff, is freely admitted. But this difference exists only in the effects which result in different cases. In the one, the party may be said to have acquired an exemption from the performance of a pre-existing obligation—in the other, a right to the thing. Something more must be shown in such a case, as the one before the court. The parties must have been in such a situation, towards each other, as to render it possible to prosecute the right—contra non valentem agere, non currit prescriptio. While the land, for example in this case, was not in possession of the defendants, how could a suit have been instituted? Against whom? If there was no adverse possession, the civil possession of the plaintiffs, under their grants, rendered it idle to be asserting their rights against the whole world by perpetual claim. No man can be required to assert a right which is not disputed. There must be adverse pretensions between the parties during the whole time, limited to sue, whether the prescription be pleaded liberandi or acquirendi causâ. Prescription can only run from the time at which the right of action accrued, by the supposed invasion of an existing right. The authority cited from the Roman Code does not appear to me to support a different principle, and indeed it seems to result from the very definition of an action, that it cannot be prescribed till it attaches.
    If we test the plea of the defendants, by these principles, which appear to me to be sound, what are the facts in the case in support of it? The Dugats and Labauve had titles in good form, each for twenty arpents front on the east side of the bayou Têche, at the place called Chicot noir, dated 1777. About 1781, Macarty made a small establishment on the west side of the bayou, in the neighbourhood, but not on the land covered by the plaintiffs’ title, under which they were still to be considered as possessed civilly from their date. Hence, there was no infringement of the rights of the grantees—no disturbance of their possession, and no action accrued to them against Macarty. The establishment remained five or six years, and was finally abandoned. There is no evidence of his claiming any title to the land at that time. Was the civil possession of the grantees interrupted by these acts of Macarty, on the other side of the Bayou? Nothing more is heard of his pretensions till 1810, at which time Prevost took possession, claiming under Macarty.
    Although the defendants and appellees give to their plea of prescription, the modest name of a limitation of the action of revindication, à l'effet de liberer,—from what does it liberate them, if it should prevail? From the obligation of surrendering the land to the appellants? If so, what is the difference between it and the plea of prescription in any other case, in which the title to a particular thing is in dispute between the parties? If the plea be sustained, the defendants will remain in possession of the land, and the judgment of this court will be their title. Or, will the court, under such a plea, declare that the land has reverted to the domain? If the former, it turns out at last to be a case of ordinary prescription; and the court cannot arrive at the latter conclusion, until it is shown that the laws of the country create a forfeiture of grants of land, if the grantees cease corporeally to possess and occupy the land for the space of thirty years, or that it amounts to a surrender of the grant.
    I think it apparent then, that this plea of prescription cannot be distinguished from that contended for by the same party, in the case of Prevost's heirs vs. Singleton and Johnston.—That the opinion of the court will be the same, in both cases. It is most manifest, from the evidence in both cases, that Lessassier, and those claiming under him, have not possessed an inch of the land in controversy, for thirty consecutive years.
    But the appellees catch at the ten years prescription, under the recognitive title between the widow of Lessassier and Macarty. Admitting that act to be a sufficient basis of the ten years prescription; that alone is not sufficient; there must be an adverse possession under it for ten years, which is not supported by the evidence. All the doctrine on this subject is so familiar to the court, that I should think it an idle waste of time to trouble them any longer on the subject.
   Porter, J.

declining to aid in the decision of this case, as he had been of counsel in it, and there being some difference of opinion between the other judges, no judgment was given at this term.

*** There was not any case determined, in the months of October or November.  