
    No. 10,470.
    Alphonse LeBlanc et al. vs. William Robertson et al.
    1. An action brought by parlies claiming to own umlividod interests in an immovable. against parties possessing and claiming to own in indivisión the whole immovable, and asking judgment decreeing their ownership and for partition, combines the double chavactor of a petitory action and an action for partition.
    2.- To the petitory action defendants are entitled to plead the prescription of ten years, although an action for partition is only haired by thirty years.
    3. Presenting titles adverse to, and exclusive of, the title sot up by plaintiffs, the defendants are not governed by Articles 1304 and 1303 R. C. O., regulating prescription and the possession required as between co-heirs and eo-owners.
    4. Joint possessors in indivisión under titles-covering the whole property, are entitled to plead the prescription of ten years and to support it by proof of joint or common possession, and aro not required to show separate possession by each co-owner of a defined part of the property.
    o.Pinding the case of defendants to present all the. elements required to maintain the prescription of ten years, that plea is sustained.
    APPEAL from the Twenty-first District Court, Parish of Iberia. Monton, J.
    
      F. O. Flanker for Plaintiffs and Appellees :
    1. Oo-heirs as well as eo-owners have a right to enjoy and possess the hereditary property left to them by their ancestors. Aud when one of said co-heirs seeks to acquire any portion thereof by prescription, without title, he must prove conclusively that he has possessed the exact separate portion, which ho seeks to acquire, during 30 years--separately and as owner. 11. O. O., 1304, 1305.
    2. One claiming hy possession alone, without title, must show possession by enclosures, be. yond which his claim will not extend. í) M 43, 174,1 R. 159, 19 La. 251.
    3. Where the locus in quo is so uncertain that it is impossible to determine over which particular portion of tlie land liis possession extended, he cannot acquire by prescription against his co-owner. O. O., 1305,
    4. Possession by digging a canal or occasionally felling trees or grazing cattle on iminclosed land, cannot serve as the basis, for the proscription of ten, twenty or thirty years. 9 M. 43, IR. 159; 19 La. 251.
    5. In order to acquire against his co-owuor under Article 1305. R. (!. 0., the possession must-be under the conditions and in the manner set forth under Articles 3500 and 3501 and • affecting tlie acquisition of property, which severs that separate portion from the community which operates as a transfer of tliaf particular tract; but- not as a bar to plaintiff’s action. 6 M. 410. "
    O. A sale of so many acres of land to be taken from a tract of land of greater dimensions, owned in indivisión by vendor and others, wherein the boundaries of the larger tract alone are recited, does not convey any defined portion of said larger tract of hind, and therefore it cannot support the ten years prescription. 2R.,220; 10 La., 276; 11 R., 436,
    7. The action of partition cannot be prescribed against, as long as the thing remains in common and this community is either acknowledged or proved. The only reason why. under Article 1305, It. C. C., the co-lieir, who has separately possessed, can successfully oppose the suit of liis co-lioirs for a partition, is that having- acquired that separate portion under Article 3500, etc., of the It. C. U., it becomes severed, from the community.
    
      8. A sale of ainuidividod interest in a tractof land held in common between the vendor and others will not support the plea of ten years prescription. 12 Ann. o; C. C. 3479: 2 R. 220.
    9. A vendor having* no possession, actual or civil, can transfer none to his vendee, who must prove a corporeal possession in himself to begin with. 11 Ann. 87 — Ann. 393.
    10. Although by the Civil Code of Louisiana this tradition of an immovable is always considered as accompanying the act, this x>resuinption does not relievo the vendee from the necessity of x>roving* corporeal possession as the basis of x>rescription. 15 Ann. 323.
    11. Possession by a tutor of x>roperty belonging to him and to his wards, is possession for such minors. C. C. 337.
    12. A sale not recorded in the parish whore the laud lies, cannot support prescription. 11 La. 340; 11 R. 50; 2 Ann. 809; sec do. Ann. 2, 5, 6, 7, 15 and 15 1-2.
    
      Bréeme cG Renoudet, and J. B. Ker for Defendants and Appellants:
    1. Where a party to a suit introduces in evidence a written document, without qualification of object, be is bound by all that is recited therein. 39 Aun. 1089 ; 33 Ann. 801 ; 0 Ann. 109.
    2. The tutor is the legal representative ol‘ the minor in all matters of a judicial nature, and any admissions made, or acts done by him during the course of such proceedings arc binding upon the minor from necessity of the case; anda judgment rendered against the latter on account of such admissions will be binding upon him. O. P. 615.
    3. Where the administrator of an estate, in winch the minor interested as heir, files his tableau of distribution, notifying all interested parties to show cause, within the legal delays why it should not be homologated, and the tutor of the minor signs the tableau, lie does an act which the law authorizes him to do, and after the homologation of the tableau the judgment of homologation will he binding upon the minor. C. P. 615.
    4. Where the tutor of the minor in such a case signs the tableau, ho admits the correctness of all the previous steps taken by the administrator in inventorying the property, distributing the funds, etc.
    5. If the tutor of a minor does an unauthorized act, susceptible of ratification by the latter after attaining the ago of majority, and the minor allows lour years to elapse after majority without repudiating* suoli act his ratification may bo prosumod. 3 Ann. 328; 3 M. 457; 8 3M. 032; 10 M. 735; 101.717; 6 La. 606; C.P. 635.
    6. It is true that oven whore one claims under the prescription of ten years he must show actual possession in the boginning; but whore he purchased by public act, recorded in the parish in which the property is situated, liis possession is presumed to follow liis title. It is only where a person purchases by private act, not recorded in the parish in which the property is situated that ho must prove affirmatively his actual possession. 2 Ann. 787, 868; 6 Ann. 772; 14 Ann. 417 ; 37 Ann. 417.
    7. There is quite a difference between a sale that imports to transfer only the right, title and interest of the vendor such as it may be, and. one which purports to transfer unconditionally a certain x>ortion of ammdivided tract, such as a third or a fourth.
    8. The princix>le laid down in 3 R. 220: 10 R. SO; 11 R, 436, and 4 Ann. 219, that- where the vendee purchases only the right, title and interest of the vendor, without general warranty, ho cannot acquire by ten years prescription, only applies to the good faith of the vendee and not to the title itself. If the interest of the vendor was set forth and warranted generally, the vendee would have a just right to believe that lie was acquiring the properly from the true owner.
    9. It is good faith alone which jjurifies the title of its defects and causes the possessor under a just title to be preferred to the true owner, who has remained so long neglectful of his rights. The good faith required by law consists only in the belief that tiie person, whose rights we acquire, was the real owner of the property sold. 4 E. 205 ; 3S Ann. 885 $ 37 Ann. 417.
    ^ 10. A universal legatee caunot prescribe where the testator was in bad faith because he succeeds to the obligations as well as the rights of the latter; but it is different with particular legatees or purchasers who are not charged with the obligations of their authors. They acquire a new possession, independent of that of their authors and can bopossossors in good faith, though their authors may have been in bad faith. Griffon vs. Blanco, 12 Ann.; 5 Troplong on Pres. No. 436.* •
    11. A person cannot possess an uncertain part of a thing, but he can .possess an undivided portion of a certain thing. Troplong on Pres. Nos. 250, 244 and 721.
    12. Co-owners of undivided property are presumed, in the absence of contrary proof, to possess for each other as well as for themselves; from which it follows that their posses- ■ sion extends over the whole tract, to a part of which they have title. Troplong on Pres. Nos. 375, 360, 493 and 528; 40 Ann. 109.
    13. Their possession in this respect, is similar to that of partners to the partnership effects, during the continuance of the partnership. Each possesses for himself and as mandatary of his co-ownors or copossessors under title.
    14. Prom these principles it follows, that after a partition between partners or joint owners, under titles, the partition, in so far as their possession is concerned, has a retroactive effect’, and each is presumed to have always had possession of the particular portion illotted to him from the time he entered into the community or partnership ; and never lo have possessed the other portions except as mandatary of Ms co-ownors or co-partners. During the continuance of the community if he has held under a just title, he has not -been in doubt as to his 2‘ight of ownership, but only as to the location of the particular portion to which he had title. Marcadó on Pres. pp. 196 and 197; Troplong on Pres. Nos. 363 and 886.
    15. It is by the state of things anterior to the community that the effects of each co-owner’s - possession is regulated. If he was in good faith at the time of entering into the community, ho can claim the prescription of ten years; in the contrary case he can only invoke the thirty years prescription. Marcadó on Pres. p. 196.
    16. Co-possessors who hold under titles adverse to one who claims to have title to an undivided jmrtiou of the land, cannot be presumed to possess as co-owners with him. It is only where the titles of the co-owners are consistent with each other that they can be presumed to possess for each other. Troplong on Pres. Nos. 244 and 245.
    17. "Where, two possessions conflict the one which is merely intentional yields to the one which is manifested by public acts of enjoyment. Troplong on Pres. No. 245 j 4 "Wheaton 213 ; 5 Peters 319.
    18. "Where a person acquires title to one-fourth of au undivided thing, he acquires title to one-fourth in every part of the thing; andas possession is presumed to follow the title he is presumed to possess one-fourth in every part of the thing.
    19. "Wliore the whole of an undivided thing has been adversely held by several persons for move than ten years, against the true owners, the latter not having had possession of any portion of the tract during that time, have no interest.in knowing which particular portion each one has possessed. That is a matter, that concerns the co-possessors alone, since taking them altogether, they have had possession of the whole.
    20. A person who holds under an adverso, though defective title, without fraud, cannot be presumed to have possessed as trustee of the real owners. Gaines vs. Li^ardi, 1 Wood 56.
   The opinion of the Court was delivered by

Fenner, J.

This suit presents the double character of a petitory action and an action for ijartition. Plaintiffs claim to be the owners, by virtue of inheritance from Norbert LeBlanc, of an undivided interest in a certain tract of land; they aver that the whole tract is in possession of the defendants, under claim of ownership; they ask for a decree recognizing them as owners in indivisión in the proportions claimed by them, and also decreeing a partition of the land between themselves and the defendants who are admitted to be part owners.

The defense is levelled exclusively against the petitory feature of the action. Defendants claim exclusive ownership of the land; they deny the ownership of plaintiffs and also plead the prescriptions of four, ten and twenty years.

The land in controversy was originally a tract of 28 arponts front on Lake Peigneur by 40 arponts in depth.

Plaintiffs present as their muniment of title a 'deed of sale of said tract from Mrs. Dubuclet to their father, Norbert LeBlanc, Sr., passed in 1841.

The father died in 1849, and no written transfer by him is produced.

Nevertheless, the defendants prove that, prior to his death, the land possessed and held by Norbert LeBlanc, Sr., and certain others under .claim of undivided ownership in the following proportions: Norbert LeBlanc, Sr., 6 arpents front by 40; Simonette LeBlanc, 6 by 40 ; James Dillon, 6 by 40 ; Drauzin LeBlanc, 6 by 40 ; Norbert LeBlanc, Jr., 2 by 40; and Godefroy Provost, 2 by 40.

It further appears that at the death of Norbert LeBlanc, Sr., his succession was opened, and an inventory was taken of his estate, upon which his interest in this land is set down as 6 arponts front by 40 in depth in a tract of 28 by 40 which is ‘'undivided and possessed by divers persons. ”

At the taking of this inventory, plaintiffs, then minors, were duly represented by their tutor, and the other heirs of Norbert, Sr., also assisted therein.

Simonette LeBlanc was the tutor of plaintiffs and also administrator of their father’s succession.

The property was sold on terms fixed on the advice of a family meeting called in the interest of the minors. The undivided six aipents front was duly sold, and the proceeds of that and other property were divided among the heirs, the share of plaintiffs being received by their tutor, and the administrator received his final discharge.

Not long after, Norbert LeBlanc, Jr., died, and in Ms succession, Ms interest in this land was inventoried as two arpents by forty, and accordingly sold and proceeds distributed.'

At the majority of plaintiffs, their tutor made a full and final settlement with them and was duly discharged more than twenty years ago.

The land has always been held and dealt with by the parties above indicated as owners in division.

Their respective interests have been, at various times, sold and conveyed to third persons, who have held, possessed and administered the laud.

In 1879, the then co-owners made a partition of the land, to which one of the plaintiffs, who had become the purchaser of a certain interest, was a party.

During all this time, no claim for or on behalf of plaintiffs was ever urged or heard of, until 1887, when discovering the deed to their father of 1841, and the absence from the records of any conveyance by him during his life, they instituted the present suit.

If there was ever a case in which innocent third persons, _holding under ancient titles, should he quieted by prescription, surely this is one.

There is not a suggestion of any intentional fraud by any one, made in either the pleadings or the evidence in the case. On the contrary, such of the plaintiffs as testify on the point expressly exonerate Simonette LeBlanc, tlieir tutor and administrator of their father’s succession, from any intentional wrong.

The case is so clearly with the defendants under the ten years prescription that it is unnecessary to discuss any other point.

The good faith of defendants cannot admit of question. They hold under a title legal and, valid in point of form, and sufficient to transfer the property if made by the true owner, which is all that is required, and which is certain and fully proved. R. C. C. 3479, 3486.

They have shown a possession, during more than ten years, in fact and in right as owners, continuous, uninterrupted, peaceable, public and unequivocal. R. C. C. 3479, 3487.

They do not hold by any title of inheritance from Norbert LeBlanc, Sr., but by titles exclusive of and adverse to him and to Ms succession. They do not hold as co-owners with plaintiffs, but by titles exclusive of and adverse to any ownership by the latter. Therefore articles 1304 and 1305 of the Civil Code relied on by plaintiff have no application.

As amongst co-heirs or co-owners it is true that an action of partition is only barred by thirty years, and can only be supported by a separate possession of a particular part of the common property, under the above articles. But prescription is not here pleaded against the action of partition, it is pleaded against the petitory action. It is not set up against the right of a co-owner to provoke a partition ; but against the claim itself of co-ownership, which plaintiffs are bound to establish before their right to partition can arise. The proposition that joint possessors in indivisión under titles covering the whole property cannot plead prescription against a claim of adverse title by third persons, without showing separate possession, by each, of particular and defined portions of the property, finds no support in reason or authority. It would mean that joint possessors in indivisión could never prescribe, and that prescription could not begin until after partition. There is nothing in the law which prevents joint titles being acquired by prescription or joint possession being the basis thereof. On the contrary, the law is clear that joint owners can possess in common the thing belonging t6 them in indivisión and that they may prescribe against the true owner by such a possession for the required length of time. Troplong, Pres. Nos. 244 and 250.

The judge a quo fell into error in applying to this case the rules regulating the prescription between co-heirs and co-owners laid down in R. C. C., 1304, 1305.

The contention of plaintiffs that the titles of defendants are too equivocal to he the basis of good faith is untenable. They quote certain decisions (8 Rob. 220; 10 La. 276; 11 Rob. 436, etc.) which hold'that a title whereby the vendor only sells his rigid, title and interest in the thing, such as they are, and without warranty, indicates a defective title and bars the good faith necessary to this prescription. These decisions have no application to the titles of defendants, which convoy the right, title and interest of the vendor in the whole undivided tract, but fully describe the extent of those interests as being so many arpents thereof,' and which, besides, presents full covenants of warranty.

For these reasons, we feel hound to reverse the judgment appealed from.

It is, therefore, ordered and decreed that the judgment appealed from ho avoided and reversed ; and that there he judgment in favor of defendants and rejecting the demands of plaintiffs at their cost in both courts.  