
    
      DUFOUR vs. CAMFRANC. Ante, 607.
    Immoveable property, at a sheriff’s sale, does not pass by the adjudication : 1ns deed is essential.
    Parol evidence cannot establish the sale.
    An heir, who has accepted, wilh the benefit of an inventory, is entitled to the possession and administration of the estate.
    If there be other heirs, their rights will be noticed, when they appear.
    A possessor in good faith, does not owe fruits, till after mand1Cia* ⅜
    
      Moreau,
    on an application for a rehearing. The court considers the conveyance which the legislature directs the sheriff' to deliver to the purchaser of property sold under a fi.fa. as so essential to the validity of the sale, that the smallest clerical error, in the description of the judgment, is fatal. That such a sale is of no effect, without the sheriff’s conveyance, and so the property of the thing seized is not immediately and really transferred to the purchaser by the solemn adjudication made by the sheriff
    In sales of lands or slaves, by individuals, it is true the written conveyance is essential to the transfer of the property. But this is the result of an express derogation, introduced, Civ. Code, 344, art. 2, to the general rule. id. 346, art. 4.
    East’n District.
    June, 1822.
    
    that which kof a fhVtile property' not1 transfericdl wlntTfTighTin the
    a purchaser saie^by^dctLl-feuits^frou,0 ⅛ mand.al ⅛
    Forced sales, under a fi. fa. were not in the contemplation of the legislator, when this exception was enacted; for he has expressly prov*ded that they shall be made with the for-ma^^'es particularly prescribed therefor. Id. 490, art. 1, 2, and 3. And it is expressly pro-yided, that the seizure, or forced sale of a debtor’s goods, transfers the property of them to the vendee. We humbly insist that this is effected by the mere adjudication.
    This was the case under the Spanish law. Part. 5, 5, 52.
    The adjudication,at a public auction, ought to be considered as forming an efficacious and indefeasible contract, which cannot be retracted. Consequently, the last bidder may he compelled to pay the amount of his bid, even by the imprisonment of his person.— Curia Philipica, Remate, sec. 22, n. 26.
    There cannot be any doubt, that in sales by auctioneers, in this state, property passes by the mere act of adjudication; especially when it is attended with delivery. It operates a complete contract between the owner,. by whose directions the sale is made to the vendee. It imposes on the one the obligation of delivery and warranting the thing sold ; on the other, that of paying the price. These respective obligations do not result from the certificate, which the auctioneer is directed to deliver to the vendee, who may, even before he receives this document, transfer his right.
    The act of January 15, 1805, makes it the duty of the auctioneer, immediately alter the sale, to deliver to the vendee a memorandum of the sale and purchase, designating the object and day; so that such purchaser may cause the same to be registered according to law. 1 Martin’s Digest, 551.
    It cannot, certainly be concluded, that this memorandum is so much of the essence of the sale, that the want of its delivery, or any error in the description of the thing sold, or the dates, should avoid the adjudication; and that the vendee may not establish the sale by other proof, nor be allowed to shew, and procure the correction of any error in the memorandum.
    The intention of the legislator was to procure to the last bidder authentic proof of the . . ... adjudication; not to deprive him of the faculty of establishing the sale, by other than the wr;tten proof required in private sales of land or slaves.
    A close attention to the section of the act of the legislature, which requires sheriffs to deliver to purchaser, under a ft. fa. a conveyance of which it prescribes the form, will shew it couched in the same imperative terms, as that which relates to the memorandum to be delivered by the auctioneer. The only difference is, that in cases of sales under a ft. fa. the conveyance is directed to be recorded, and a certificate of this record, endorsed on the original, which, after these formalities, may be received as evidence, in every court of the state. 2 Martin’s Digest, 335.
    It is evident that this conveyance is not intended by the legislator, as an essential and indispensible requisite to the validity of the sheriff’s sale. He intended only to establish a rule of evidence, and enable purchasers to prove the sale, by other than testimonial proof, always precarious and liable to perish. Had he intended to confine such purchasers to written proof, he would have said, as in the case of sales by individuals of land and slaves, that testimonial proof shall not be received. Provision is indeed made for the admission in evidence of the original conveyance of the sheriff, with the endorsement of the certificate of its record thereon ; but it is not said that other legal proof of the adjudication is to be rejected.
    Legal proof cannot be presumed to be excluded ; but in this case, the words of the legislator manifest his intention of giving a new manner of proving, without taking away any; for, he says the sheriff’s conveyance is to be received as legal evidence; assimilating this mode of proof to other modes existing before, which are not, from any expression used, taken away.
    The act forbids the record of the sheriff’s conveyance, if there be any erasure or interlineation, not noticed before the execution of the conveyance. If this document be the only legal evidence of the adjudication, a purchaser will be totally disabled from establishing the adjudication, under the construction adopted by the court, if there be any erasure or interlineation, not noted before the execution of the conveyance; even when able to shew by irrefragable, and even written and . authentic evidence, that such erasures or m-terlineations were actually made, before the executiot) 0f tf,e conveyance, and in order to render it conformable to the real terms and conditions of the sale, which had at first been mistated. A construction equally opposed to the letter and the spirit of the law.
    If the sheriff’s conveyance was the sole legal evidence of the adjudication, it would follow that the purchaser might be deprived of his right, by the death of the officer, before the execution of the deed.
    Let it not be said that without the sheriff’s written conveyance, there is no adjudication, no sale, no expropriation. This would be to confound the formalities which ought to precede, with those wffiich ought to follow it, in order to preserve the evidence of it.
    The first are matter of rigor, their absence or insufficiency prevents the adjudication taking place.
    It is true, if a sheriff sell a debtor’s goods, without the previous advertisements, which the law requires, he transfers not the property of the latter: but it cannot be concluded from the requisition of the legislature, that the sheriff should execute'a conveyance, that the want of it occasions the nullity of the adjudication.
    Perhaps the common law of England has adopted the principle, that every formality which a statute requires ought to be rigorously fulfilled ; but it is repealed by the civil law.
    The latter distinguishes whether the statute has used imperative or prohibitive words.— In the latter caáe nullity ensues, although not pronounced. Not so, in the other case, unless the nullity be pronounced, or the formality be of the substance of the instrument. Civil Code, 4, art. 12, 1 Jurispr. du Code Civ. 66, 67 ; L. 1, 14, 5.
    The law which requires the sheriff’s conveyance, in a sale under a fi.fa., containing no negative words, the absence or irregularity of such a conveyance does not occasion the nullity of the adjudication. The legislator has not pronounced it, as he did, in case of sales by individuals, of land or slaves: and the conveyance is not of the substance of the adjudication. It cannot be urged from the circumstance of the act containing the form of the conveyance, that the legislator intended to make this form a matter of substance. One of the titles of the 3d Partida is full of forms of acts, prepared by legislative autho* . __ . 1 - , rity. Yet, it never was contended that any °ther form could not be used, provided it con-tajne¿ what is of the essence of the contract; as in an act of sale, the enunciation of the thing sold, the price, and the consent of the parties.
    If, therefore, the delivery of a conveyance or memorandum, be not an indispensable requisite of an adjudication: if it add nothing to its force or validity; if the adjudication be per se, an efficacious and irrevocable contract, creating obligations between the parties, and transferring property ; if itcapnot be retracted; if the conveyance or memorandum be useful only to the proof of the adjudication : which is independent therefrom; if the adjudication be susceptible to be proved by other legal evidence, in case a fortuitous event prevents the execution of the conveyance or the delivery of the memorandum, as the death of the sheriff or auctioneer, or if the conveyance, on account of erasure, or alteration properly made, but not timely noticed, afford no legal proof of the adjudication; this court will likely be induced to conclude that if an error has crept in thro’ misinformation of the authority under which the sheriff acted, J . this circumstance will not be so fatal as to absolutely destroy the party’s right, and prevent him to establish, if he can, by the record, that a valid adjudication took place.
    The authority of the sheriff, to sell a debt- or’s property, may appear, not only in the conveyance which he gives to the vendee; but in the fi. fa. on which he made the seizure, and his return thereon.
    Hence, the title of the defendant to the slaves of V. Dufour, sold by the sheriff, is in-contestibly proven. The possession which he has received, and the sheriff’s receipt for the price, put it beyond doubt that the sale was made to the defendant. The sheriff’s authority to seize and sell appears from the two writs ot'fi.fa. which are spread on the record, and his return on the back of these writs.
    The court, states that the sheriff, according to the enunciative part of his conveyance, had no authority to sell.
    This may be strictly correct, in relation to the fi. fa. in the case of Laroque Turgeau vs. Dufour’s heirs, which is not recited in the conveyance. But the case is otherwise as to the . one in Camfranc vs. Dufour, which is there recited.
    The defendant cannot imagine that the statute is necessarily to be construed with so much rigor, that the words, and others, added to the title of the suit recited, must be considered as avoiding the seizure and sale.
    Should it be objected that the sale of the slaves of the heirs of Dufour, being made and adjuged in globo, it is impossible to distinguish those who have been sold at the present defendant's instance, from those who were sold, at that of Laroque Turgeau — we answer that the sheriff’s return on the respective fi. fas. will clear the doubt.
    The attention of the court is particularly solicited to two parts of its decree, which, it is imagined, it will, on examination, deem to require some correction.
    1. The court has decreed the slaves to be delivered to Dufour Delonguerue; while it is apprehended they ought to be restored to the sheriff, who had attached them.
    2. The decree has adjudged the slaves to this gentleman, as heir of Y. Dufour; while the plaintiff admits that he is so for one half of the estate only; the other half belonging to the minors Lafitte.
    
      The judgments obtained by the present fendant, and by Laroque Turgeau, being re-cognised as valid by the decree, the seizure and sale under them, are alone avoided, and things oughtto be replaced in the situation they were in, when those judgments were rendered. At that time, the slaves, since sold to the defendant, were not in the possession of Dufour’s heirs, but in that of the sheriff, who had attached them, at the inception of the suits, in which these judgments were rendered.
    No law authorises the delivery to a co-heir of the portion of another, who has not renounced the succession.
    The heir, who has accepted part of a succession, acquires jure accretionis, without any act of his own, the share of a co-heir who renounces, ff. 29, 2, 53, sec. 1.
    
      Pothier likewise thinks that the jus accrcti-onis can only take place in case of the renunciation of a co-heir. Traite des succesions, 228, 229, sec. 4.
    Livingston, for the plaintiff
    I deem it unnecessary to discuss any of the questions raised by the learned gentleman, but shall confine myself to the only point yet open in the J . , , , ,, cause — at what time should the defendant commence to pay hire for the slaves, purchased by him ?
    The defendant purchased in the year 1810, certain slaves, at a sheriff’s sale, and received a conveyance which the court have decided to be one that could not pass any property. They have therefore directed the slaves to be restored, but have reserved for further discussion, the question, whether he shall be accountable for the wages of the slaves, and if at all, from what time.
    The plaintiff contends, and as he believes, on principles which cannot be controverted, that the wages are recoverable from the moment the defendant came into possession.
    1. The slaves were the property of the plaintiff; he has never been divested of that property, either by his owrn act, or by the operation of law; they have then never ceased to be his: but from the time of the sale, to this day, the defendant has received the proceeds of their labour. The proceeds of the labour of a slave belong to his master; therefore the defendant has received our property, and is bound by every principle of law and equity to restore it. But, although these principles are acknowleged as generally true, yet it is said they are restrained in this state, by positive law, and that a possessor bona fide cannot be forced to restore the proceeds of the labour of slaves, although they never belonged to him. Any provision of law operating such unjust effects must be strictly construed. No law, permitting one to enrich himself at the expence of another, without his assent, can or ought to be favored; if courts carry it beyond the letter of the law, if appears to me, that they legislate, and I should say, that their legislation is neither legal nor wise. Nothing seems more incontestable than that — no one has a right to the use of my property, unless by my consent or the operation of law; if positive statutes have in certain cases contravened this principle, even tho’ we should not acknowlege its justice or wisdom, we must submit; although I cannot myself see why a legislature should be permitted to give to another the use of my property, without my consent, when they are restricted from depriving me of the benefits I may derive from a contract; the *one is no more my property, my right, than the other. Without raising any constitutional question, let us see what the . law is on the subject:—
    How far has this exception been carried ? j ¿j0 noj. mean ^ the courts; they have clearly no right to create or extend it, but by the legislature. The only expression of their will that is relied upon, is in the Civ. Code, 102. They begin by an unequivocal affirmance of the principle I contend for. “ All that is produced by a thing, whether moveable or immoveable, belongs to the owner of that thing.’’ “ The produce of the thing does not belong to the simple possessor, and must be returned with the thing to the owner, who claims the same, except in case of the detainer having possessed it bona fide.” The bona fide possessor then is the only one not bound to restore the fruits. Who is the bona fide possessor? The next article gives us the answer. “ The bona fide possessor is he who has possessed as owner, in virtue of a transferable title of the property, (litre translaiif de propriety ;) but erroneous and defective, whose defects, however, he was ignorant of.” Let us apply this definition to the facts in this case:
    1. As to the nature of the title under which the possession was held in the English part of the text, it is inaccurately, almost unintel- . . . % ligibly expressed, it must be a transferable title, meaning probably such a title as would, if the person who made it, had the property vested in him, have been sufficient to transfer the property; to give any other construction to the words, would render the expression, translatif de proprieté, totally inoperative ; because if a conveyance so erroneous and defective, as not to pass the property, were to make him a bona fide possessor, merely because he was ignorant of the vice of the conveyance, then there would be no use in the terms trans-latif de proprieté; whether it were in its form sufficient to transfer the property or not, would then be immaterial; the only enquiry would be, was the party ignorant of the defects ? If he were, he would be a bona fide possessor, and entitled to the profits; but the law has used these words, they must therefore have their effect; and if the conveyance is not in form, such as would transfer the property, the holder under jt, is not by the terms of this definition, a bona fide holder. Now, the conveyance in question has been determined by the court to be one, by which no property could pass, and they determined this upon no other evidence than that which the defendant had before him at the time he purchased: therefore we come to this double conclusion. First, that this is not a title translatif de proprieté. — • Second, that he was not ignorant of its defects. Yet, both of these must unite; for if the title be not translatif de proprieté, it cannot protect him, whether he knew the vices or not, and even if it were translatif de proprieté, if he knew the defects, it will not protect him.
    As these are the material points in the case, perhaps it may be proper to develope both of them somewhat further—
    On these points, every thing I could say has been strongly expressed in the opinion given by this court, in the judgment now under consideration, and I refer to all that part of it which considers the validity of the sale as conclusive, both by its reasoning, and the authorities it cites, to shew that this is not an act which could transfer the property. The judgment and execution are as necessary as the sheriff’s deed to transfer the property, but here there was neither judgment nor execution; how then could the property be transferred, when two out of three of the requisites were wanting. An attempt is made to apply to this case, the doctrine relative to 1 r J _ deeds which are good in their form, and which would transfer property, if the grantor had a title. But the cases are widely different; the purchaser here knew that the property did not belong to the sheriff; the deed itself purports that it conveys the property of the heirs of V. Dufour, not the property of the sheriff; the purchaser knew that the sheriff could only sell when he had an execution, and where there was a judgment to warrant it; he ought therefore to have satisfied himself as to these points; the one was attended with no difficulty, the other with very little; if there were an execution, it must have been in the sheriff’s hands, nothing easier then than to shew it; if the defendant did not choose to make use of this most ordinary diligence, can he make use of his own gross neglect to excuse his want of knowlege ? But ignorance is not enough, if he had reason to doubt, dubitatio et ignorantia in omnibus nocet, etiam in singulis. D. 41,4,6, in notis, n. 42. He must be presumed to have known the law, by which the only authority which a sheriff could have, was an execution: common sense must have taught it him, and if he knew it, he ought to have enquired for the execution; and if he had, it would have been found that there was none to warrant the sale. gu(. SUpp0Se so ignorant as not to know an execut¡on Vvas necessary, be could not have read the deed without learning it; for it is there set forth as the authority of the sheriff; if he was still so stupid as not to perceive this, it will not avail him. Juris error nulli prodest. If I purchase from a minor, believing him to be of age, I am in good faith, because this is an error of fact; but if I know him to be a minor, but believe that a minor can convey, I am in bad faith, and cannot prosecute under such a sale, quia juris error nulli prodest. D. 41,4, 2, sec. 15.
    It has been said, that in this case there was an error in fact, not in law; that there is an execution, and a judgment recited, and that Camfranc might have believed that they existed as they were recited — to this I answer—
    1. By repeating that voluntary ignorance shall not protect him ; that common prudence required of him to ask for the sheriff’s authority, which if he had, it could have been produced in a moment; suppose A should pretend that he is the attorney in fact of B, and as such, should convey B’s lands to C. who should take the conveyance without asking to see the power P Can it be doubted that this would not be a title translatif de proprieté, ifB had never given any power at all? If a power had been produced, and it should prove to be forged, the case might be different; because here would be a just reason to believe that the party had a right to convey; it is not enough to believe it; but the belief must have a just foundation.
    2. I answer, that Camfranc did know, and could not but know, that there was neither judgment nor execution to warrant the sale. The deed recites, that it was made in “ a suit of J. B. Camfranc and others, against the heirs of L. V. Dufournow as he was J. B. Cam-franc, he could not but know that he had never obtained any such judgment, or issued any such execution; he was not then mistaken in the fact; his mistake, if any (but certainly he has shewn none) was in the operation of the law which.required the true recital of the judgment and execution; but that, as we have seen, shall not avail him.
    The boná fides, required to retain fruits, is the same as that required to prescribe; the species of title is the same ; yet in those cases, although the circumstances of the case pre-elude any idea of an actual design to defraud, because the ignorance proceeded from an error of law, because it was such as might have been removed by common caution, the courts have uniformly declared that conveyances having legal defects were not such as transferred the property, and could be no foundation for prescription, although the party may have believed them to be good.
    In the case of Francoise vs. Delaronde, there was not the slightest suspicion that the defendant had not acted with perfect good faith; he believed the order of the judge sufficient, but he was mistaken; and the court declared that the conveyance could not be a foundation for prescription; indeed it appears to me, that having once determined that it is not a title by which property can be transferred, the court has no other power; that the consequence is declared by the law, and must inevitably follow, that it can neither support prescription, nor be a reason for retaining the fruits.
    This consequence appears to me inevitable; the law declares that the fruits shall be restored in all cases, except those where the possessor holds under a title by which property may be transferred ; the court say that this is not such a title, therefore the defendant does not come within the exception, and of course, falls under the provision of the general rule which requires that he should restore the fruits. Of what use is it then to enquire what have been the decisions of courts, the opinions of jurists, in other countries? Whatever they may be, or may have been, if our law be clear, we but bewilder ourselves in the search after uncertain rules, when we have one to recur to that is clear, and is the only one that has any authority to guide us.
    Yet, even that search would produce a result very different from that which is imagined ; let us see to what it will lead us.
    
      Carlivallio, tit. 3, Des. 2, 4, 7, first goes into the enquiry, whether property sold in execution, under either of the following circumstances, is to be restored, viz.
    
    1. Under an execution not formally nor legally issued, either because the due order in taking the property has not been pursued, or that a solemnity of the sale at auction, or of the citation, has been omitted.
    
      2. When it has been struck off to the ere* ditor, at a low price, with enormous lesion, or below one half of the just price.
    3 When the plaintiff has procured the property to be struck off to himself, by the intervention of a third person.
    Restitution, in these cases, he says, may be obtained, either on an appeal or by suit for the recovery of the property; and he says, in this case, the judges must decide that the debtor pay within a certain period to be fixed, the debt and costs and interest, and that the creditor restore the goods sold with the fruits. Atque etiamsi conformant sententiam executionis nihilominus jubere, ut si intra terminum arbitrari-um ab eis statutum, debitor solvent debitum credi-tori, cum expensis et interesse, creditor restituet de-bitori bona vendita, cum fructibus. And for this he cites these Spanish jurists, Parladorio. Rodriguez and Volano.
    
    It seems impossible to produce an authoritj more applicable to the present case, and where the result is so precisely that which is contended for by the plaintiff; this it will be observed, is the course of proceeding, where relief is sought by appeal. Altho’ the reason appears to be the same, yet as my author, in his order of treating them, divides cases of appeal from suits for restitution, such as the present, we will follow him through the other case; it is found in the succeeding numbers, 0 and 9.
    As to the second question, he says we must pronounce that the same thing must take place if the debtor should sue before an inferior tribunal for the restoration of property seized in excution, and irregularly or illegally sold to the creditor. But whether restitution of the goods is to be made with the fruits, or not, doctors differ; some deny it altogether, because this restitution appears to be given ex gratia, under our law; this reason fails, for nothing is done ex gratia, but by right under a positive law: a court may annex conditions to a favor, but can add none to a law ; but, in a restitution which is made ex gratia, the fruits are not included ; others, as positively affirm, that the restitution ought to be made with the fruits, as well because the fruits are implied in the words restitution, as because the creditor suffers no loss, when his debt is paid to him with interest; therefore he ought not to profit by another’s loss; others finally distinguish thus: either, first, the execution is void on account of the omission of some form, . and then, the whole debt being paid to the creditor, with interest, the property must be restorecl to the debtor, with the fruits. The same rule would apply, if there was any ill faith in the creditor, or a suspicion of fraud. Or, secondly, the execution is defective in justice, because the goods of the debtor were sold at an inadequate price, all the other forms being observed, and in that case the creditor shall enjoy the fruits, and the debtor recover the property without accounting for them.— Apply either of these opinions to the present case, and it will be found whether we consult express law or authority from opinion, that the plaintiff is as much entitled to the wages as to the negroes themselves.
    in France, a natural child, whose tutrix received the fruits of the whole estate, under the sentence of a court of justice, when by law, she was entitled only to one half, was ordered to account for the fruits. 7 Strey, Part. 2, 972. Heritiers Lee vs. Eglie.
    
    I conclude by one argument, which I think, must be conclusive, even if we had no positive law on the subject. It grows out of the nature of the property. All that we have been considering until now, relates to real property, which does not perish by the use. But the subject of our present enquiry is negroes, all of them have grown old in the service of the defendant; it is more than twelve years since he possessed them; more than the common calculation of the life of man; some of them have actually died, others are maimed, and all are lessened more than one half in value from age; if the risk of mortality and accident is ours, surely the wages, which are the only compensation for it, must be ours also. Suppose the negroes had all died during the pendency of the suit, we must still have paid the debt and interest, and would have received nothing.
    If he who runs the risk of loss should also reap the advantage of any occasional gain, from the same cause, it would seem that no doubt ought to exist in the present case.— Why ought we to suffer the loss of the ne-groes who are dead? Because the thing perishes for the owner; res perit domino-Why ought wfe to receive the fruits ? Because the same law declares that the fruits belong to the owner.
    There is an evident distinction also between the case of a re-entry under a claim a 
      remere, which is put by the defendant s coun- ' . . ■ sel. 1 here the party wras put in possession by the owner, was suffered to remain so by his consen^ title was one translatif deproprieté, and therefore the fruits'might justly be retained by the possessor; the same observations may be made as to the restitution for lesion; yet in that case even there appears, by the authorities he cites, to have been a great diversity of opinion.
    But in our case every thing is different, there was no conveyance by the owner, no consent, no title that could transfer property. Indeed, Pothier gives the reason in the case of the vente a remiré, which shews it to be entirely inapplicable to our case. Vest une suite du prin-cipe établi, que le remiré n’opérant la resolution du eontrat de vente que pour V avenir, tout ce qui est provenu de la chose vendue jusqu'au rémeré doit appartenir au vendeur ! ! Poth. eontrat de vente, n. 405.
    
      Pothier is also quoted to show that an error of law shall also protect against the restitution of fruits; but the case put in the Roman law, in the first place, is not our law. Secondly, it does not apply to the case if it were; because it is the case of a testament, the invalidity of which appears to have depended on the fact; and thirdly, Pothier himself, in the same treatise, most fully and explicitly de-dares, that a bona fide holder is obliged to restore all the fruits, by which he has been made richer. Vide Pothier Traité du droit dc proprieté, n. 423, 425, 430, 432,
    Moreau, in reply.
    We have nothing to do with the imperfections of the translation of the Code — the French text, in which it is known that work was drawn up, leaves no doubt.
    
      Le possesseur de bonne foi est celui qui a possédé comme proprietaire, en vertu d'un litre translatifi de proprieté, mais erroné ou vicieux et dont il igno-rad le vice, &rc.
    
    In the English text the error and the vice of the title are confounded together by the conjunction and, which makes it read thus — “in virtue of a transferable title of property, but erroneous and defective.” Whereas, by the French text, whether the title contains error or any other vice, the good faith of the possessor cannot be attacked, if he was ignorant of it.
    Nothing more is required to destroy the argument that the transferable title must be perfect in its form. The just title, required as a basis for prescription, is one in its nature suscepti ble of alienating the property, such as sale, donation, or exchange, &c. This is the clear deduction from the 18th law of the 3d Partida, tit. 29.
    n We therefore say, that if one person receive of another an immoveable thing, in good faith, either by purchase or exchange, or as a donation or a legacy, or by any just title, and keep possession of it during ten years, &c. such person will acquire the thing by prescription.”
    It is then by the nature of the title, and not its goodness, that we judge of the good faith of the possessor.
    If, on the contrary, the possessor holds as lessee or usufructary, he can never acquire by prescription. Part. 3, tit. 30, /. 4 5.
    We must thus understand the Civil Code, art.. 7, 102. It speaks of a title in virtue of which he who is in possession believes himself proprietor, although he is not so in reality. If we construe it to mean a title exempt from every species of error or vice, there would be a contradiction in the other part of it, which supposes a defective one, and yet declares the possessor one of good faith, provided he was ignorant of the defects.
    The question now before you depends on knowing if the vice in this title was one of which the defendant might have been igno- * ° ° rant. Both the ancient and modern laws have made a great distinction between the cases of acquiring by prescription, or merely retaining the fruits.
    In the Roman law the defect in title prevented prescription from running, but it must be such a defect that the possessor could not reasonably presume to be ignorant of, or of which he might easily have informed himself. Domat, liv. 3, tit. 7, sec. 4, n. 13.
    Our Code goes farther, and declares, que le titre ml par defaut de forme, ve peut servir de base a la prescription de dix et vingt ans. Code, 488, art. 70.
    It might therefore be said if Camfranc pleaded prescription in virtue of an adjudication, which the court has pronounced null, the defect of form must have been known by him. But, to enjoy the fruits, is the same rigorous doctrine in force ? Surely not.
    Thus Ulpien decides, that at Rome an error of law was not a good cause to prevent him who entered on a succession of which he believed himself heir, from making the fruits his own.
    It is said the edict of Adrien, from which 
      Ulpien takes this doctrine, was not in force in Spain. But Rodriguez in his translation of (jjggg^ ufo' 5⅞ vol 3? tit. 3, 146, does not say so rpke cjvq |aw ⅛ considered as the common law of Spain. It is the same in France, and we see Pothier citing this passage of Ulpien and recognizing it as a principle of general jurisprudence.
    Á law of the Partidas too has sanctioned it. Part. 3, tit. 28, l. 39, and allows the fruits to the possessor in good faith, without requiring from him any other title. In neither the Roman nor Spanish law was title necessary; ignorance, either of fact or law, enabled the party in possession to make the fruits his own. Such also was the jurisprudence in France. Pothier, Domaine de propridé. n. 395.
    The only place in which a question is made in the Spanish law, of the title of him who claims fruits, is the Partida, 3, 28, 40; it enumerates several circumstances, in consequence of which the possessor will be considered of bad faith. The first is, where a person has sold his property in fraud of his creditors. The second, where he has disposed of it through fear or violence. The third, where the thing has been acquired contrary to the provisions of law.
    
      The third case is stated to be where the . purchaser buys at a forced sale, without observing the formalities prescribed to render it valid; but it is not every informality that will thus vitiate ; it is where the adjudication has been made in secret.
    In translating this law, an error has been committed, and though part of the blame may attach to me, still it is true that there is a mistake, and it is my duty to shew it.
    It is thus given, “ the third, where any thing is ordered to be sold by an officer of the court, and a purchaser buys it, without observing the formalities prescribed in such sales, &c.”
    According to this translation, all kinds of irregularities would be sufficient to make the purchaser one of bad faith, and prevent him from claiming fruits — but what says the original.
    
      El tercero es guando alguno comprasse encu-biertamente alguna cosa, de aquellas que man-dasse vender el ojjicial de nuestra corte, contra la costumbre que deue ser guardada en venderlas.
    
    This does not speak of him who buys, omitting certain forms, but of him who buys secretly, clandestinely.
    
      But our Civil Code has terminated all difficulties, in declaring that he who has a title oí a nature to transfer the property, makes the fruits his own.
    The whole question then turns on ascertaining if the vendee was ignorant of the defects in his title — of this there is no doubt, the act on the face of it was regular, the purchaser knew nota word of English; the question whether the property did not pass by adjudication, was at that time unsettled ; it is admitted to have been one not very clear. Can the defendant then be responsible, for not knowing what learned advocates might well have doubted of, and wise judges have found it necessary to pause on?
    
      
       By citation, here is meant the citation to be present at the sale, not the citation to appear at the commencement of the suit.
    
   Porter, J.

delivered the opinion of the court. The circumstance of this case having been once remanded, with the intimation of an opinion on one of the principal points, rather different from that lately expressed by the court, joined to the earnestness with which an application for a rehearing has been pressed on us, has induced a very patient and particular attention to all the arguments offered by defendant’s counsel. After attentively weighing every thing advanced, we are obliged to refuse the application.

On the first point, it is insisted that the deed of sale by the sheriff is not of the essence of the contract; that the adjudication transfers the property; that the deed is only the evidence of this transfer.

Admitting this position to be correct, it by no means follows that other evidence than the deed can be received of the adjudication. A contract is complete, in the definition given by the Civil Code, when there is the consent of the parties — the capacity to contract, a determinate object, forming the matter of an engagement, and a lawful purpose ; yet, suppose all these in the purchase of a slave or a plantation ; could the agreement be enforced unless there was evidence of it in writing?

But it is said that the exclusion of parol proof does not extend to sales made by authority of justice.

To this there are several answers.

Our lawr has provided, that all sales of immoveable property, shall be made by authentic act, or under private signature; and that all verbal sales of any of these things shall be null, as well for third persons, as for the con-trading parties.

4 sheriff selling land or slaves to a buyer, whQ pays the price agreed upon by the adjudication, is within the letter of the provision quoted. — And the contract thus formed, is within its spirit.

For the policy of our law. would be entirely defeated, if parol proof could be received to establish sheriff’s sales of immoveable property; and our jurisprudence would be strangely inconsistent, if it had provided, that when land is claimed in virtue of the owner’s consent, the demand should be rejected unless that consent was proved by written evidence, but if asked for, by the alienation which stands in place of consent, that it might be proved by parol.

The act of the legislative council, which prescribes the formalities to be pursued, when property is sold on execution, supports the construction we put on it; for it requires a written conveyance,only in case land or slaves are sold. It intended then to make a difference between them and moveables, and to preserve the distinction which runs through our whole law on this subject.

It is proper to observe, that this is not new doctrine in this court, as far back as June term, 1820, in the case of Durnford vs. Degruys & al. syndics, it was stated “ the property in the land sold by the sheriff, has never been determined to pass by the sheriff’s return. The law requires the sheriff to make out, and deliver a deed of sale to the buyer, and this is the period at which the property passes.” 8 Martin, 222.

When therefore, the thing disposed of is immoveable, written evidence of the purchase must be produced.

Nay, more, such written evidence as is prescribed by statute.

This results from the principles already established by the opinion of the court in this case, and is supported by the authorities drawn from the Spanish law, which are there referred to; property can only be claimed from him, who was once proprietor, by his consent shewn that an other person should have it — lapse of time, from which that consent is presumed, or a forced alienation.— Now, if asked under the latter mode, it must be shewn that the alienation has been made in the manner prescribed by the authority which compels it; otherwise the purchaser may , have a conveyance, but he has not one under the ^aw’ an<^ al°ne can stand in place of proprietor’s consent. The act already referred to, directs the sheriff to give a title in a particular form, and is so jealous of any other being introduced, that it prohibits the deed being recorded, or read in evidence, if there are any material interlineation or alteration therein, which shall not have been noted before signing.

All laws, which deprive the citizen of his property, against his wish, must be strictly pursued by those who claim the benefit of them.

There is great error in imagining that the court is influenced by any common law idea, in coming to this conclusion. It is a fact familiar to every one acquainted with that jurisprudence, that the purchasers at sheriff’s sales, under a judgment of a court governed by it, take the property, without being in any way responsible for previous irregularities— all that they are required to look to, is that there is a judgment. A strange anomaly it is in that system — and one which we would not, if we had the power, wish to introduce here

The second point made, is, that the court should have ordered these slaves back into the hands of the sheriff, because they were once attached in two suits, one at the demand of the present defendant, and the other at the suit ofLaroque Turgeau.

We understood this to be an action in which the plaintiff claimed slaves descended to him from his ancestor. The defendant pleaded title to the property, in virtue of sales made under judgments rendered against the plaintiff and his co-heirs. This title, wre thought, was not made out, and we decided that there be judgment for the petitioner; but we added, as the law required us to do, that as the purchaser’s money had been applied to the discharge of the plaintiff’s debts, he must reimburse the buyer, before he could take the thing sold. In coming to this conclusion, we considered Camfranc as purchaser at sheriff’s sale, and in that character alone, and so, expressed it. The rights which he had in virtue of his former judgment, were notin any respect affected by the decree rendered, any more than those of Laroque Turgeau, or his heirs. The only question considered and decided, was the legal title between owner and purchaser, and the circumstance of Camfrane # ⅜ being plaintiff in a suit, under which it did not appear he had bought, could not in any way affect our determination.

Nor do we see that his rights require w’e should make such an order, if we had the power. It is not necessary to give effect to a fieri fiadas, that the slaves should be in the sheriff’s hands when it issues.

The error into which the counsel has fallen arises from a misconception of the opinion already rendered. In his supplemental argument, he states, that the court having maintained the judgments, in the cases of Camfranc vs. Dufour, and Turgeau vs. Dufour, but annulled the sales, made in consequence of these judgments, ought to restore every thing to the same state. The court has not annulled the sales made in consequence of those judgments. It considered there was not legal evidence of the sheriff having sold the slaves sued for, under any judgment, as he recited one in his deed, which the purchaser would not, or could not produce.

On the last point, that judgment cannot be given for all this property, because there are other heirs who may yet accept, we have not had any difficulty. The heir, who is now be- .... tore the court, until the succession is liquidated, has a right to take the whole estate; we know not but it may be all required to pay the debts of the ancestor. As he has accepted with the benefit of an inventory, he is entitled in the first instance to the possession and administration of the deceased’s property. Civil Code, 108, art. 104.

We directed the cause to be remanded, in order to obtain evidence what the hire of the slaves amounted to. It has since been suggested to us, that the parties could terminate the litigation between them, if they had the opinion of the court whether any hire is due. and for how long.

To aid them in this intention, we have attentively listened to their arguments, and we have formed a conclusion on the authorities cited,and the reasons urged in support of them.

The question appears to us, to lie in a very, narrow compass. The elementary doctrine is, that a possessor in good faith does not owe fruits until after judicial demand. Domat, liv. 3, tit. 7, sec. 3, art. 5. Civil Code, 102, art. 6 and 7. And that good faith is ordinarily tested by enquiring w hether the defect in the title (if it is one of a nature to transfer the property) proceeds from a vice in the form, or a wanl °f right in the person who convey-e(j. jn Qpier words, if it is an error in fact, or an error in law, under which the purchaser holds the object claimed.

It has been urged on the part of the plaintiff, that the defect existing here w'as of the latter kind, and he has relied on the case of Francoise vs. De Laronde, 8 Martin, 619, asa positive authority in support of this position. We cannot agree with the counsel, and we believe a fair distinction exists, and can be shewn between that case and the one now presented for decision.

The article cited from the Code, 103, art. 7, is nearly the same with that found in page 488, art. 68, which defines the just title, that is the basis of ten years prescription, longi temporis. The authorities which apply to the one, .vpll illustrate the other.

Pothier tells us that a just title is that W'hich is of a nature to transfer the property; so that when it is not transferred, it is a defect of right in the person who makes it, and not a defect in the title, inconsequence of which the tradition is made, Pothier, Traité de prescrip tion, n. 57—he adds in the same treatise, n. 85, that a title void in itself, will prevent him in whose favor it was executed, from pleading prescription; and our Code says, when the title is null from a defect in form, the party cannot prescribe under it. Civil Code, 488, art. 70.

Let us apply this doctrine to the case before us.

The title presented here is perfect as it respects form; it pursues the very words of the statute; the defect is a want of right or authority in the sheriff* to make such a conveyance, not a defect in the manner he made it. As nothing, therefore, appears on the face of the deed which is defective, the knowlege of want of right, in the person who sold, is not brought home to the vendee, and his error was one of fact, not of law. It is difficult to see where is the difference between this case and an ordinary one of sale, where the purchaser acquires, from a person who has no title, by a regularly executed act, before a notary public; in such case the buyer acquires none, but he has that good faith which enables him to plead prescription.

The plaintiff* has assimilated this to a contract, entered into with a person who acts as attorney in fact for another. In such a case it js ¡f agent had no authority, the buyer wouj¿ be in bad faith; if he had one which was forged, the purchaser would be a bona fide possessor. We acknowlege the analogy so far as to admit that the sheriff acted here as an agent, but we cannot see any distinction in the cases put, and we think there would be as great an obligation in the vendee, to examine the verity of the written power, as there would be for him to enquire into the truth of the assertion of the seller, that he possessed one. We believe that in both hypotheses it would be an error of fact; one which the law would not consider of such a nature, as to prevent the party from pleading prescription. The rule is, that when the opinion of the possessor, who holds an object under a title of sale, has a just ground, though in fact there is no sale, the opinion is equal to title, Pothier, Traité de prescription, n. 96. Digest, lib. 41, tit. 4, l . 11. Idem, l. 2, n. 16. Bonce fidei emptor esse videtur, qui ignoravit earn rem alienam esse ; aut putavit cum qui vendidit, jus vendendi habere. Digest, lib. 50, tit. 16, l. 109. From every thing which appears in proof in the case, now before us, we have no difficulty in concluding that the purchaser honestly believed he had a good title, and had a just reason for that belief.

But it is said that in the suit of Francoise vs. De Laronde, it was held that the purchaser was responsible for the irregularities, which had taken place in the sale of minor’s property. It was so held, and correctly; because, by the 60th law of the 3d Partida, tit. 18, the order of the judge, authorising' the sale, the length of time it was advertised, and the fact of it being at auction, must be all expressly mention-, ed in the deed, in order that the purchaser may know what he buys. In that case the sale was not made in the form prescribed by law, and the buyer was justly told that he must be presumed to know defects which appeared on the face of the instrument by which he held the property.

It results from this view of the subject, that the appellee must pay hire for the slaves, from the date of filing the petition, and that the plaintiff owes judicial interest on the money paid by defendant; on the sum of four thousand and forty dollars for the same length of time— the former judgment, remanding the cause, to ascertain the value of the services of the slaves, does not require any alteration,  