
    
      CARREL’S HEIRS vs. CABARET.
    
    Appeai from the court of the first district.-
    The anion inoffidosi testa-mend is fesjfrect by the lapse of five veftrs*
    The téstator’s prescribing there and sis-fcls
    
      # Joseph Carrel, the plaintiffs5 brother, died in 1806, having instituted the defendant his universal heir : his executor put her in possession of the estate, shortly after the testator’s death,.and she remained in the undisturbed enioyment of . ...... , „ T J ^ ^ *he SMh °f June, 1817, when the pre-ent was brought: the plaintiffs claiming the estate as legal heirs of the deceased, and alledguig the invalidity of the will, as not being tna e with the requisite solemnity, and the incapacity of the defendant to take under it, averring her to have been the testator’s concubine.
    There was judgment for them, and the defendant appealed.
    Moreau, for the plaintiffs.
    1. The plaintiffs have the ations inojjiciosi testamenté in order to have the will of their brother annulled, as he instituted the defendant, his concubine, his universal heir. Part, (5, 7* 12. Id. 8, IS. Code 3, 28, 27- 1 Hulot, M<7- 1 Gomez Farm Mesoíut. 240, ch. 14, n. 37. 5 Febrero ana-dido 8, l, n. 3, p. 375.
    Concubines are considered in law as persons of evil life, de mala vida, turpes personae. Greg ,via Lopez on note 2. Partidas 6, 7, 12. 1 Gom ⅜⅞ Far. Mes. ch. it, n. 38. 1 Morillo, cursas juris cicilis, 3, 26, n. 242.
    The defendant opposes to our action the prescription of five years, under Part. 6, 8, 4. If this law be attentively considered, it will be discovered that it extends only to persons drs-inherited for a cause they seek to disprove, and J r not those who were pretermitted in a will.
    . Even if this law could ever have been applicable to a case like this, it could not be invoked by the defendant, as it was repealed by a posterior one, u hich extends prescription in all personal actions to twenty years, and in all mixt actions to thirty years, notwithstanding any contradictory disposition, in the laws of Alphonso the wise. Recop. de Casi. 4, 15, 6. Indeed the Partida 6,15,4, speaks only of actions purely real, but it is clear that these, like inixt ones, are prescribed by the lapse of thirty years. 1 Sala, Derecho de España, 2,2, n. 10.
    2. Even if the plaintiffs were prevented by the plea of prescription of five years, from exercising the action inofficiosi testamenti, they should have that of nullity, which was heretofore prescribed by the lapsa of thirty years, and since our code ci.il, by that of ten.
    The will isvoid, either as a public or private one; if a public one, the notary,who received it, not having b: en present at its making. Recop-de Cast. 5,4,1, of the old edition, answering to 10,18,1, 1 Febrero, 1, 19, n. 203. If a pri . vate one, because it is not attested by the competent number of witnesses. This is fatal. Re-cop. de Cast. 5, 4, 2.
    
      It is true, the number of witnesses required by Part. 6,1, 1, in nuncupative or open wills, was reduced to three, when the will was received by a notary, and to five in all other cases. Recop. de Cast. 5,4,1. But, according to this last law, the will is invalid, as there were but four, instead of five, witnesses. The defendant contends that theSpani h lawyers do not all agree, as to the necessity of the will being made before five witnesses, and that many hold that 3 witnesses suffice. This is the case only when the will is made in a place in which more than three witnesses cannot be procured. I so lo hiciere sin escribano publico que sean al, a lo menos, cierno testigos, vecinos, según dicho es, si fuere lugar donde los pudiere aver: i si no pudieren ser ávidos cinco testi-gos ni escribano en el dicho lugar, a lo me-nos sean presentes tres testigos vecinos del tal lugar, ¿ye. Rec. 5, 4, 1.
    It is then only in cases in which the will is made in places so thinly inhabited,si locus sit ita desertus,as Gomez says, that no more than three witnesses can be had, that a will, with that number, is valid. 1 Febrero; 1. § 19, n. 2Q5.Covarruhias, lOperaomnia, ch. 10, n. 1,2. Gomez L. 3 de Toro, n. 47,3 Azevedo Recop. 5, 4, 1, n. 28.
    
      The only point in which the Spanish jurists appear to have differed, in the construction of ... the law of the recopnation cited, is m regard to the notary mentioned therein.Covarrubias and Gomez held that if a will was made in presence of 3 witnesses only, in a place in which a greater number could not be procured, but in which a'notary could have been had, it was valid,while Azevedo maintained the contrary; contending that no distinction could be made, where the law has not made any. His opinion, according to Sala, a modern Spanish writer, seems to have prevailed. 1 Derecho real de España, 2, 4, n. 5.
    Neither is the will valid, as an oral one: for the same number of witnesses is requisite in wills of this kind. 1 Febrero, añadido 1, § 1, n. 4, id. §final.
    
    If it be considered as a private will,it is void on another ground; as it was not signed by the testator, nor by any person for him. Partida 6, i. 1.
    3. The defendant cannot have acquired, by the prescription of ten, nor that of 20 years, the estate of the testator, because these prescriptions do not avail a possessor without ti tie, nor with one void in its form.
    
      or(^er inv°ke either of these prescvip* tions, in regard to immoveable property, it is necessary, besides a possession in good faith, that there he a title transferring the proper* ty, as a sale, donation, or will. Part. 3, 29, 18.
    The will in this case is not such a title, be* cause it was not proven, and possession decreed under it, contrarily with the heir&atlaw'* who had an interest in contesting it.
    The instituted heir cannot, of his own private authority, take possession of the estate devised to him, when there is an heir at law'* Recop. 4, 13, 3.
    Awill cannot be executed before it is proven before the judge: and the Spanish law did not distinguish, in this respect, the will received by a notary, from that made before witnesses. Part. 6, 2, 4.
    As it does not appear that the defendant was sent into possession by the judge, the presumption is, that she took it of her own authority. She can only prescribe, as those who possess without a just title, viz. by the prescription of thirty years.
    Further,the will could not be valid as a private one,without being proved by the subscribing witness ; a proof which does not appear ever to have been made. ! So it cannot be said that the defendant has a title, enabling her to avail herself of the prescription of ten and twenty years.
    Whilst she was without a title, it is immaterial whether she believed she had one. A putative title cannot support a prescription. Falsus vel opinatus titulus non est titulus ? Clef des Lois Romaines, 363, verbo Prescription, ff. 41, 3,27 ⅝ 29, 6 Hulot, 330.
    It is true, error on the part of another may render a putative title sufficient, but the law has expressed in what cases. Clef des lois Romaines, loco citato, ff. 41,10,5.1 Domat. 1,3, 7, §4, l. 14. Partida 6,14, 7.
    The prescriptions of ten and twenty years cannot avail, because the will, under which the defendant’s title rests, is void in its form.
    Generally, a void title cannot support a prescription: for it is as no title. Pothier, Prescription, n. 85, La Porte, 25,26, C. 8,33, 7. 3 Hulot, 218.
    The principle is the same in the Spanish law. Gregorio Lopez in his 3d note, oaPart. 3 19, 18, treating of the prescriptions of ten and twenty years, asks whether one may prescribe in a void title. An titulus mdlus priestat jus-tarn causam prescriben di ? According to an author,whom he cites, he answers in thé affirmative; adding, but, by conforming one’s self to the dispositions of the law 14 in the same title. It is, however, apparent that there is a typographical error : he intended to refer to the 15th law, for the 14th does not mention at all the void title, while the former expressly treats of the possession of a thing under a legacy, in a will in Which irregularities migh t exist. It is then according to Part. 3.19. 15. that we must understand Lopez. This law mentions only moveable property held under a void or irregular will; we cannot then,without going beyond its expressions, extend what Lopez says of prescription under a void title; to immoveable property; as the lot which ⅛ the object of the present suit.
    In this respect the consequence drawn from Lopez’s opinion; is conformable to the principles of the French and our laws,which do not consider the prescription of moveable property as sufficiently important to be submitted to the rules established in regard to the prescription of immoveable property. La Porte. 37. In our statute,the rule that une cannot prescribe under a void title does not pi’event the bona fide pos-sesssor, without tille, of acquiring the fruits of the estate claimed from him. Civ. Code 103? art. 6, 481, art 30, 489, art. 70.
    
      Will it be contended that the Part. 6,14,7 ' provides that the instituted heir,who has possessed in good faith, may prescribe in ten years, among present, although there exist a posterior will? We admit that there are exceptions to the general principle in this case as that which has been cited to the one that disallows prescription under a putative title. We have shewn the rule of the Spanish law, and onlycontend that the exceptions must be likewise shewn and ought not to be extended.
    Let it be noticed that the case in which a putative title may be the basis of a prescription, cited in Part. 6, 14, 7, is not that of a title absolutely void under the general rule* but which is avoided by a posterior will.The law incapacitates from being the basis of a prescription, the title, void on account of its irregularity in point of form, false or illegal, on account of the incapacity of the instituted heir. A will revoked by a posterior one, the existence of which is unknown, may nevertheless be regular in its form, and it is such a will the law is speaking of. For if the first will, besides being revoked,was void in point of form,there cannot be a doubt that the law cited \^ould not enable one to prescribe under it, in regard to immoveable property.
    
      The quotation from Gregorio Lopez, and the expressions of the Part. 3,39,15, shew that the nullity of a title, which renders it an obstacle to prescription, as to immoveable property, without being so in the case of moveable, is that resulting from a defect of form which renders it irregular and illegal. u Men,’’ says the law, “ make legacies of moveable things, in a way which is not valid according to law, or make such a legacy by a will and revoke it by another,” &c.
    A nullity in point of form is meant, when wills are spoken of, which are not valid according to law, or the incapacity of the legatee or instituted heir, as we may see by and by. In order to prescribe, says Sala, there must be a legal reason, a real & existing rule. Derecha razón, el titulo debe existir real y verdaderamente. 4 Derecho real de España, 16,2,2, n. 3 Sf 4. Usucapió, non precedente vero titulo, procederé non potest. C. 7,29, 4-3 Hulot, 210.
    TheRoman law has a striking example of the principle that an illegal title cannot be the basis of a prescription in the case of an adopted son, cited in C. 7, 33, 8.
    Lastly,we have a positive text in law,which silences discussion : a provision that when a title is defective,with respect to form, it can’t become the basis of the prescription of ten and . .... „ A 1 1 . , twenty years. Civ. Code 488, art. 70.
    Although the Will and death of Carrel, 'in iSOd, be- anterior to the prombt|;afidh of the Code, in 1808, we contend’that its dispositions must regulate tlie prescription invoked by the defendant. Prescriptions do not result from contracts, but from the. mere disposition of the law. The legislature then which establishes a prescription may establish rules in relation to it, and; violates or infringes no contract by the extension of the time required : or in making the acquisition of it to depend ©m circumstances or conditions more favourable to the proprietor. The defendant, if she ever could prescribe,, ac* cording to the law» ef Spain,, «nder a title null in its form, did not actually do so, although the period of prescription began to run. If before its completion a new law abrogated the former, and prevented a prescription under a title null in its form, it is not easy to see on what grounds she may contend; that she; can prescribe in spite of the new law..
    As to ,tüe defendant’s incapacity, on the score of concubinage, to inherit to the prejudice of ihe testator’s brother and sisters,, the law is so plaid, that it suffices to refer thereto. Jf. 41, ⅛, 4, fS Rodriguez 164,ff. 41, y, % to Étídriguéz yñ,
    
    
      The reason why the nullity in the form of an act is fatal to prescription, is that the, possessor cannot alledge his ignorance of an apparent de-feet. Ignorantin juris non excusat. 2 Clef des lois Ram. 363, verbo Prescription, ff. 41, 3, 31, 6 Hulot 332.
    
      Hennen, for the defendant.
    The plaintiffs’ brothers and sisters of the whole blood of Joseph Carrel, deceased, claim his estate from Magda-len Cabaret, the defendant, instituted his universal heir by a will made the 25th of September, 1806, before a notary public iti New-Orleans, on two grounds.
    t. Magdalen Cabaret, the universal legatee, lived in open and notorious concubinage with their brother, previously to, and at the time of his death ; and she is, therefore, infamous, and unworthy to be instituted heir.
    2. The will itself is null; and though approved by the court of probates, on the 4th of October, 1-4)6, at the request of the executor, conferred no right to their prejudice.
    I, The plaintiffs, in their petition, have united what was considered as two actions in the Roman and Spanish laws ; the actio inoffi-ciosi testamenti, which embraces the first ground; and the haereditatis, which embraces the second: both, however, permitted, under . . „ . . provisions of our statute, to -be instituted at the Same time.
    Tiie actio inojfitiosi testamenti is admitted by the Spanish and Homan laws, in favour of ascendants and desendants, disinherited, except in the cases stated in Partida 6, 7> 7 §* 11» Rut it was required that the heir should be expressly disinherited, totidem verbis, and the cause mentioned in the will. Partida 6, 7, 10. A testator, however, leaving no ascendants nor descendants, could disinherit his brother without giving any reason for it in the will: and no express words were necessary to effect it. Dezimos, que el hermano puede deseredar al .pt.ro con razón, e sin razón. E aunque non ■fiziese mention del en el testamento, puede de-sear lo suyo a quien quisiere, quando no ouiere fijos, nin otros que descendiessen del de la lina derecha, nin padre, nin abuelos; fueras ende, si establedesse por gu heredero a tal orne, que fuesse de mala vida, o enfamado. Partida, 6 7> The same provisions are made in Partida, 6, 8, S. E cómo quier que non fa-ga emiente del hermano en el testamento, nin le dexe ninguna cosa dé lo suyo, non le pertenece al hermano, de fazer .querella del testamento que el otro éu hermano óuíesse fecho, nin te 
      
      puede qwbrentar. Fueras ende, si aquel que fuesse establecido por heredero, fuesse orne de mala fama.
    
    
      i he only difference in these two laws is, that the last forbids the institution of an heir of bad fame, mala fama, and the latter, an heir of bad life, or infamous, mala vida, o enfamado.
    
    The plaintiffs contend, that a concubine is embraced in the above description of persons ; and to that point, opinions of Spanish commentators have been cited. -
    In reply to this, I observe that all these commentators refer to the Roman or cannon law, iot foundation of their opinion ; and no one of them founds his opinion upon the words of the text. In fact, the only semblance of such an opinion, in the text, is to be taken from the words, mala vida, which, it is evident, are used as synoni-mous with mala fama and enfamado.' The conjunction, o, is used for the very purpose of ex-explaining the preceding words, mala vida : in the latter part of the law itself, Partida 6,7, IS, where it was necessary to make the same specifications, the words, mala vida, are omitted, and the word, enfamado, only used. In the Partida 6, 8, 2, the same provisions are likewise repeated, and the word, enfamado, only used. For these réasons only, I would conclude that the Spanish commentators quoted, are incorrect when they consider the provisions of the Roman code,, or canon law, as embraced by the above laws of the Partidas. But a more con-viucing proof of their error is drawn from the 4th Partida, 14th title, where are mentioned the different descriptions of women, other than wives, with whom men may live without any temporal punishment, though they commit a mortal siri. In the three laws of thjs title, various provisions are made respecting haraganas, concubines; and ft is expressly declared that it is lawful for a man to take such an one : nay some men, in some cases, are restricted to them and forbidden to marry. Assuredly then such persons cannot be infamous in Jaw, whatever opinion we maintain of their moral character; nor be .disabled from taking as legatees by the very same laws which recognize their existence.
    Should I how ever err in my interpretation of the laws of the Partidas on this subject, yet the action inojjiciosi testamenti is barred by five years. The defendant has plead prescription generally to the petition of the plaintiffs: and more than ten years elapsed between the time the defendant took possession ftf the testator’s estate, and the institution of the suit. In the Partida 6,8, 4, is found this prescription of fiv<v years. Dezimos, qua si alguno one fuesse des- . > . hetedado, calíanse fasta cinco anos despues que p/ heredero ouiesse entrado en la heredad del testador, que de los cinco anos en adelante non se podría querellar: e maguer se querellasse, queriendo mostrar razón per que non devia ser desheredado, non dever ser oyido. The same prescription is stated irí l Sala Í76 ; 8 Rodriguez, Digesto, fit, 95 ; and in the codes of Theodosiam and Justinian. Codex Theodosi. 2, 19. 5. with the Paratille and note of 1) Gode-froy. Pothier’s Pandects of Justinian, l. 5. t. 2, no. 51. ff. 5, 2, ⅞8, $ 1.
    II. Thus much for the actio inojjdciesi testa-ntenti: as to the second ground on which the pkintiSs claim, averring the will to be null and that the probate thereof gives no right to the defendant. I answer, that from a care&d ex» amination of the text of the Novísima Recopi-lación, (lib. 10, tit. 18, l. i.J where we have all the formalities requisite in making wills, it does not appear that any one of'them was omitted in that of Joseph Carrel.
    1. It is no where said, not even by a single Spanish commentator, that the will must be its the handwriting of the notary. On the contrary Febrero directly tells us that the testator may -Write the will himself, particularly if he is .a 1 , . foreigner, ami in case he cannot write, it may. be done by a person acquainted with his lam guage : in both which cases the notary and witnesses have only to sign the writing. Febrero, edit. 1817, l, i, n. 279.
    
      2. It was not necessary that the witnesses and notary should all have been present at the same time when the testator declared to them his will : it is even usual for the notary to write down the will from the dictation of the testator in the absence of all witnesses Febrero, ibid/, no. 275. And if the testator at any time before or after the will was reduced to writing, declared it to the notary, it is valid on the same principle. But supposing the will to be void, for the reasons (not appearing on the face of it) that have been alledged by the plaintiffs, even then they cannot maintain the present action ; it is barred by the lapse of ten years.
    The good faith of the defendant is admitted ; indeed it could not have been disputed; she had every just reason to believe the will good and her possession of the estate 0/ the testator legal, when the court of probates had approved of the will .and authorized the, executor to- discharge the legacy it contained. Civil Code 1()¾ art7* Bat the plaintiffs contend, that as the will is null, it cannot be the basis of the prescription of ten years : they formed their doctrine on the 70th article of the Civil Code, page ⅜88, which is as follows: When a title is defective with respect to form, it cannot become the basis of the ten or of the twenty years prescription.
    
    On this article I observe, that there may be •null titles which however may serve as a ba is f.tr the prescription of ten and twenty years. I et us take the example, put in the Partida 6, 14, 7, of a person instituted heir by a will subsequently revoked, though unknown to the heir. In this case, if the heir has been in possession of the estate ten years, not knowing that the will had been revoked, he acquires a good title to the property against all claimants who were present. Such is the provision of this law of the Partidas, and such would be the decision under our own code. There, though the nullity of the title is incontestible, it is not apparent on the face of it. The will was not defective with respect to form.
    What then is the limitation to be affixed to this general principle of our code ? Plainly that affixed iu the text; a defect of form, apparent on the face of the title : not a nullity to he established by proving facts which contra-ample of a will made by a testator non compos mentis: soch will would clearly be void ; y t, if all requisite forms were pursued in making; it, legatees, in” good faith, would acquire a valid title under it by prescription.
    But, further, there may be titles defective in form, and the defect appearing on the face of them, and yet serve as a basis for prescription under certain circumstances. Our own code, page 303, art. 804, will furnish us with an example. A married woman, without the authority of her husband, disposes of a plantation, her dotal property ; such act would he void : yet if she does not claim it within ten years after the $eath of her husband, the purchaser would acquire a good title thereto by prescription. We may then safely conclude that a very extensive limitation is to be put on the general terms of the code : but where is the limitation to stop ? The limitation then I state to be this, that wherever the act, against which a nuliity of form is alledged, may be ratified by a new consent, or regards only individuals and not the public, in all such cases, if the nullity is not insisted upon during ten years, it is too late to do it after that lapse of time. % Cotilleáis — 41. There is another point of view in which the possession of the defendant may be placed, which will shew most conclusively that she has . - T ■ ⅛ , gained the estate of J. Carvel by prescription. The plaintiffs, the brothers and sisters of the testator, all residing in the same district, within a few miles of each other, could not have been ignorant of his death : they state in their petition that they knew of the possession of his estate by the defendant.. The executor of the will, it is to be presumed, did his duty before he delivered the estate to the universal legatee of the testator. He required then the consent of the heirs, the present plaintiffs, to this delivery ; for such was his duty, 5 Pothier’s posthumous works, l2mo. S93 : nay, it will even be presumed, after the lapse of ten years, that he formally cited them to be present at án act so immediately affecting their interests: Vide Gloss, no. 2 of Gregorio Lopez, On Partida 6, 2, 4, Sujjicit longum tempus, id est decennium, ui praesumatur ista solemnitas intervenissé. Under these circumstances the plaintiffs are totally barred from any action : the defendant has acquired a complete title, however defective or null it may have been in its commencement. This I prove from the Partida 3, S9, 19. Sa-biendo, o creyendo ciertamente, el que enage-nasse cosa que f aesse rayz, que non avia dere-cho de lo jazer, estonce aquel que la reeibiesse-
      
      del, non la podría sanar por menor tiempo de treynta anos ; jueras ende, si el señor de la cosa, que acia derecho en ella, supiesse que enagenava, e non la demandasse, del dia que lo supiesse fasta diez anos, seyendo en la tierra, o fasta veynte anos, seyendo en otra parte. Ca estonce ganar la ya por el uno destos tiempos. A law agreeing with the 119 Novel, cap. 7> and the authentic of the code 7> 331. The law of the Partida, supposes a case much more un-favourable than that of the defendant, but after a silence of ten years, the true owner, if cognizant of the alienation, loses all his rights, and the possessor acquires a good title. On the same principle our Civil Code, 303, art. 204, limits the action of nullity to ten years. Silence for such a length of time is properly considered as a ratification in whatever form it tvas made. See also the same reason given, 2 Clef des lois Homaines, 360.
    Our Civil Code, 5, art. 16, gives us a good rule for interpreting doubtful or ambiguous expressions in laws; which is, to compare the different parts with each other, and thereby to reconcile them, wherever it can be done. It is necessary, also, to limit general expressions and provisions in such manner as not to destroy particular ones. With the limitations and ex planations which 1 have given from Cotilfe of the 70th art. page 489 of the Civil Code, we reconcile it, with art. 203d, page 803,' and put the whole in harmony with the 8 Partida. 29, 19, which has not been abrogated or superseded by any provision of our statutes.
    Wherever the defects in form of a title, or its nullity, is known to those who wish to take advantage thereof, it must be done within ten years, or they lose all their rights. Vigilanti-bus, non dormientibus, subveniunt leges.
    The counsel for the plaintiffs, in answer to these authorities and principles which are in-con testible, oppose the opinions of Pothier, that a null title can pot serve as the basis of prescription, and that error in law destroys good faith. Pothier, Prescription, no. 29 ⅝" 85, supported by various quotations from the Roman law. It is not my business to reconcile Pothier with our Civil Code and the Spanish law ; nor with the 419 Novell. 7 chap., which I believe may be done : I have only to shew what is the law of our own state, found in our statutes, or the Spanish code; and if Pothier or the Roman lawyers have entertained other opinions, they cannot control the decisions of the supreme court of Louisiana.
    I would, however, ask of the advoeates of the plaintiffs, wliat was the erroi in law of the defendant; anti where are the defects in form of her title? Point them out, put your linger on them. Did the defendant err in her opinion of law, when she believed she might, though the concubine of Joseph Carrel, be instituted by him universal heir to his estate, to the prejudice of brothers and sisters of the whole blood? Be it so: does not the law, however, limit your action in such a case to five years?
    Where are the defects in form of the defendant’s title ? The will was not made in presence of the notary : you prove that ; but as far as form is concerned, the will states it was made in the presence of the notary and the witnesses. The form is right; but the fact contradicts it. And here it is, gentlemen, that your erroneous Opinions of law have taken their origin. You have mistaken a nullity in substance for a nullity in form. Ppthier may have led you into this error ; for be speaks of null titles in general; and does not limit their nullities to those of form, as is done by our civil code. Let the court take the will of Joseph Carrel, certifie 1 by the notary, w ithout any of your evidence to contradict it; there will appear no defect of form 0!» its face ; and this court must consider it, as the court of probates did, a valid, legal will.
    
      You are guilty, gentlemen, of a palpable cou-tradiction in terms when you extend the mean* fog of a defect ⅛ form to a defect in substance. These two kinds of defects are as intelligible and distinct as latent and patent ambiguities in the will itself. The one class are apparent from the writing; the other must be shewn by evi-> dence. X repeat it, the will of Joseph Carrel is not null for defect of form; if it is nulf, it is because the form is contradicted by evidence. Had this will ‘"been forged, as was insinuated, and no defect of form been apparent on the face of it, the legatee, being in good faith, would have prescribed , under it, though null, because forged.
    Where there is error in fact, it fs admitted on all hands, prescription runs. Well, now, what more was there in this case*? An error i fact only ; an error too, let it be observed, produced by a judicial act, the homologation of the will of the testator by the only tribunal to which it could be referred, the court of probates: all this, moreover, known to the plaintiffs, without a word of disapprobation or opposition on their part. Their silence alone was a sufficient fact for the defendant, on which to ground her belief that the title under which she claimed was good. The putative, and the null title, as well as the null judgment, where there is good . . „ • faith, are each a sufficient basis to form prescrip-tioñ, as we are informed by the Spanish com-mentátor, Gregorio Lopez, Glass. 3, on the Part. 3, £9,19. The counsel for the plaintiffs, aware of this opinion have made a very blundering explana'ion of it. They make Lopez say that this is to be understood with the explanations of the 15th law of the same title. But his words áre very plain, qum dixi, what I have said, Hot ivhat the law says; on the 14 l. of this title: nor is there any error in the ciphers as the counsel suppose ; different editions of the Par-tidas, which I have compared, agree ; and if there was an error, it would not avail them ; it is still, what I have said, not what the law says'
    While I am on the errors and mistakes of the counsel for the plaintiffs, I cannot forbear to remark: on a very glaring one : that concubines could not receive a legacy by the Ro-snan law. Let us read the Pandects, (*£5, De eoncubinis, and we will find that they had many legal rights. And it is said expressly &at they can take by legacy. l, 41, §. 5, 34, 9, 16, $ 1. Dig. lib. 3£, t. 1. 5 Hulot’s translation, 97- 1 Diet, du Digeste, 96 ; Diet. Digest, 338. Taylor’s civil law £73, £, 7 Heimccii Opera, 164. 187- To which might be added many more. Another error is, that it was necessary for the defendant to be put in possession of the testator’s estate bv the order of 1 *' the judge. — No such thing ; the executor had the right, and it Was his duty to put the defendant in possession (Partida 6, tO, 2, with the gloss of Lopez n. 1J if no opposition was made on the part of the heirs.
    I admit that our statute must furnish the rule for determining whether prescription has accrue-I in this case : and I rely with perfect confidence on the provisions of it. Civ. Code 303 ; art. 204, 311, art. 240, *87, art. 67.
    I- hope enough has been said to shew the court that the action of the plaintiffs is not sustainable, and that the defendant’s title by prescription is good. I think it, therefore, unnecessary to say more than a very few words on the subject of some facts whhh were drawn up on the part of the defendant’s counsel to be submitted to the jury, and rejected by the judge. Had the defendant heen permitted to prove th. e facts, the present appeal would have been easily determined.
    1. The plaintiffs cannot recover the estate from the defendant, before they reimburse all sums paid by her for the testator, (Partida 3, 14, 36 • ó Rodriguez’s digest, nor until they pay her what the testator owed her, idem, ibid, and what she contributed towards the pu rchase of the lot.
    3. The executor delivered the estate of the testator to the defendant, with the knowledge, consent, and approbation of the plaintiffs ; they are, therefore, barred in the present action. Civil Code 311, art. 310. 1 Sala, 176. 3 Rodriguez, 106. Partida 6, 8, 6. Partida 3, 39,10.
    3. Good faith and the belief that the defend* ant was ow'ner, were also proper facts to go to the jury. Pothier, Prescription, no. 96.
    4. The delivery of the testator’s estate by the executor, was another fact proper for the jury to find. It has been said that the defend* ant took possession of it violently, without the consent, acquiescence and approbation of the plaintiffs ; surely then, it was a proper fact for the jury to pronounce on,
   Derbigny, J.

delivered the opinion of the court. In the discussion of their respective means of defence, the parties have taken a most extensive range. But although due attention has been paid to their arguments, .we find not necessity, for the decision of this cause, to inquire into any other points than the -following;

1. As an action inofficiosi testamenti, is- thi& claim barred by the silence of the plaintiffs during five years?

8. Is the defendant’s title one on which pre-scriptión could run ?

I. Heirs iu the direct,descending or ascending, line, may be disinherited for cause assigned ; collaterals with or without cause. No distinction is made in the Spanish laws, between the express disinherison of the heir at law and the mere omission of his name in the will; both are called disinherison : un hermano puede des* heredar al otro con razón é sin razón. Part. 6, 7, IS. Against the disinherison, the heir at law may claim within five years, after the instituted heir has taken possession of the estate : past that time he cannot. Part. 6, 8,4. Is this law applicable to the present action ? An attentive perusal has convinced us that it is.

The law begins by saying that there are many reasons for which the disinherison cannot be removed : “ as when the heir instituted proves that the heir at law was really guilty of the act for which he is declared to be disinherited ; and this takes place whether the heir at law be a descendant, an ascendant, or a collateral.” So much of the law is, of course, applicable only to cases where the disinherison is for cause assigned. But what follows is uncou netted with the preceding part: “ We more* * . over say that if a person, who has been disin-lierited, remains silent and does not co nplain 7 for five years after the instituted heir has taken possession of the inheritance, he shall not thereafter be heard, though he should offer to shew Why he ought not to have been disinherited.” This provision is a general one ; we cannot undertake to say that it was intended to apply only to cases of disinherison for cause assigned. The plaintiffs, however, contend that the case of disinherison without cause is not comprehended within the purview of this law. Let us see if any good reason may be found in favor of that interpretation. Disinherison, without cause assigned, can take place ynly against collaterals ; and the law gives them no relief against it, except in one case, and that is, where the instituted heir is infamous, and the heir at law- a brother of the testator. We do not mean here to examine whether the defendant be one of those persons whom the Spanish laws deem infamous ; but taking it for granted, we say that to support the construction of the above law as, insisted on by the plaintiffs, the institution of the infamous person should be absolutely void ; for then, no application being necessary on the part oF the heir at law to have it avoided- no laps?, of time would be fatal during which he might neglect to bring suit against the instituted heir. But the institution of an infamous person as heir is not absolutely void, it is only voidable : el hermano puede quebrantar el testa-mento, probando esto ante el judgador ; “ the brother raav have the will annulled, on proving the fact before the judge and in law S, tit. 8, seyendo el heredero tal como sobreiictoes, estonce bien podría el hermano querellarse ante el juez, é quebrantar el testamento en que fuesse estab-lecido por heredero, i( The heir being such as is abovesaid (infamous) the brother may bring bis complaint before the judge, and cause the will to be annulled, in which such iseir is instituted.” Finally, it is qprtain that the infamous character of the instituted heir does not make the institution absolutely void, that the disinherited brotner cannot even complain of it, if he is himself guilty of any act against the testator, by which disinherison is incurred : Pern si este hermano s'obradicho hubiesse fecho contra el testador alguna de las cosas porque los her-manos pueden ser deseredudos, según diximos en el titulo de los deseredamientos, estonce non se podría querellar, sin desatar el testamento del harmano. The defendant, therefore, if the ptaintiffs bad brought their action against her w'thin the five years, might have repelled it, by proving that the plaintiffs were guilty of some one of those acts : and if she had succeeded, she would have had judgment in her favour What then, if they said nothing during five years? Why, the will must remain valid in the same manner as a disinherison, for cause assigned will be maintained, if not attacked within that time.

But the plaintiffs say that, supposing their action inojjiciosi testamenti to be barred according to the above quoted law of the Partidas, that provision is repealed by the law 6, tit. 15, book 4, of the Recopilación de Castilla, which fixes general rules for all kinds of prescriptions of actions. It is a principle well known, and which this court has recognized on several occasions, that general provisions do not repeal special laws, when these may subsist without clashing with them. We think that the prescription of five years established by the law 4, tit. 8, part @, against the action inojjiciosi testamenti is'not repealed by the law 6, tit. 15, book 4, of the Re-copilación, which provides generally, that personal actions shall be prescribed by^ twenty years, and actions real or mixed by thirty.

It is too late, then, for the plaintiffs to avail themselves of the action of inofficious testament 5 let us see whether they can succeed on the other J _ ground, the nullity of the will on account of the omission of some solemnity required by law.

II. For the decision of this point, attention must be had to the present situation of the parties. The defendant was in possession of the late Joseph Carrel’s estate since more than ten years, when the present suit was brought. The will was her title, and under it she may have prescribed, provided that title was a just one aud she a possessor in good faith, for all the distinctions resorted to by the plaintiffs upon that point, will, on examination, be found to centre in that “a just title and good faith.”

Much labour, in the opinion of this cour''» has been wasted in proving tiiat this will was not, in reality, such, as it appeared to be on the face of it; that an instrument outwardly perfect in its form, had, in fact, not been executed as it purported to have been. When the law says that a title defective in point of form shall not be the basis of prescription, what does it mean ? A title, which, though apparently good, has some latent defect ? Certainly not. A title, which, though apparently clothed with all the formalities required by law, may be proved defective by extensive evidence? No. It means a title, on the face of which the defect is stamped. And why? Because the holder of such a title cannot pretend that he possesses in good faitli; for he is supposed to know the defect of form which his title shews, and cannot plead ignorance of law. But admit latent nullities, unknown in point of fact to the possessor, to prevent prescription, and what does good faith avail him ? Or rather what becomes of the Whole doctrine of prescription ?

But if the ignorance or the misconduct of the notary, from which it results that this will Was in reality null, protects the defendant, the plaintiffs say that it is not so with respect to a defect which she must have known, to wit, her own incapacity to inherit from Joseph Carrel. It, is true, that, if the latent defect is known to the possessor, he cannot prescribe : why? Again, because he does Pot possess in good faith. I #may contract with a madman, believing him to be of sound mind, and prescribe under such a title, notwithstanding its absolute nullity: si a jurioso quern putem sanee mentis entero, con-stitit usucapere utilitatis causa me posse, quam* vis nulla est emptio. fl. 2. § 16. ff. pro empt.J But if I knew him to be mad, I cannot prescribe under pretence that I was ignorant of his incapacity to contract. So here, the defendant wag the concubine of the late Joseph Carrel; if the law had provided that the institution of sue a person as heir was absolutely void, she could ... rot plead ignorance of her incapacity to inherit. But the law, as we have seen, is very different. Far from making the institution void, it has made it only voidable, at the suit of the brother, and by him only in certain cases; and it bat provided that if the disinherited brother remains silent five years, he shall not thereafter be heard. The defendant was capable of inheriting : her title was good, provided the plaintiffs acquiesced in it by their silence. At the end of five years, she could prescribe under a will in every respect valid : at the end of ten, she has prescribed under a will apparently perfect in point of form. The objection of the plaintiffs to this will as a just title, on which prescription would run, does not appear to us of sufficient weight to require any particular consideration.

It is, therefore, ordered, adjudged and decreed that the judgment of the district court he anulled, avoided and reversed, and that judgment be entered for the appellant with costs.  