
    
      O'CONNOR & AL. vs. BARRE.
    
    Wife's property, not brought in marriage or dowry, is paraphernal.
    If a tutor sell the real property of his word, the purchaser will be quieted by a possession of four years after the ward comes of age.
    Ctjí the 6th of January 1764, Jacques Courta-bleau obtained a requéte from the commandant 0f the Parish of Opelousas for a tract of land of one hundred arpens of front, with the depth of eighty on one side of the Opelousas River and twenty arpens of front with the depth of forty 0,1 l'ie other side, and the 21st of 1765, aConces-<jjon-issued for that quantity. On the grant are v . " . - . > . 1 ^ ⅜ , the following endorsements. “The said land was «jjQ^gbt, at the auction of Mrs.- Courtableau, “ by Mrsv Delamorandiere, to whom the present “ act and concession will serve as a title.' Qpelou-u sas,#J|5th of October 1774. , Le Chevalier “Declouet.”
    “For Madame Marcantell, to whom the said land properly belongs from this day and to her heirs and assigns. Opelousas, l9ih of October 1774,. Le -C^jevaiief Declouet. Delamorandiere.”
    
      West. District.
    
      September 1814.
    On the 20th of January 1780; the said tract ~, , ' , , . .• „ , > , , ot land was sold, at the sale oí the estate oí Mrs. Marcantell to Evan Mills ,* and after his cjeath to wit, on the 4th of May 1782, it was inventoried as part of his estate : on the 5th of June 1783, the widow of Mills passed a sale for half of the tract, and several negroes, to one Elliot, to whom the estate was indebted: on the25th of,June 1784, Elliot having received the sum due to him released the sale of the land. The widow married William Reed, shortly after Mills’ deaths and shortly after the marriage, the whole of the said tract of land was conveyed to the appellee by a deed of sale, made by the said Reed; (with the (jonsent of his wife as is stated in the deed) concluding in the usual form of notarial acts, ri. e. that the parties appeared before him, the commandant of the post of Opelousas, and signed the same in the presence of the witnesses and of him the commandant. Which was signed by Reed and, his wife and two witnesses, but not by the' commandant. . ,
    
    Mills left four daughters to Wit: Helen, born in 1775, married to Peter O’Connor; Ma-non, born in 1777, married to Dennis Lefy-enge; Clarissa born in 1779, married to Ezra Bush- • nell, iind an infant two months old. The three . first Were married .before they arrived to the age of 25 years : the last died a minor- (
    In the year 1811, Peter-0‘Connqr, Denoip and Ezra Bushnell, in right of their wives* instituted a suit against the -appellant to recover the said tract of.land, as the inheritance their wives. The district Court decreed in favor of Lebrenge and Bushnell r but rejected the ])retentipns of O’Connor, on the plea of prescription : from which decree this appeal is taken.
    • Baldwin, for the plaintiffs.
    As this cáse has ⅞ come up in the name of all the .original plaintiffs ‘ I shall bring into view all their pretentions.
    The tract of land, demanded by the plaintiffs and appellants, descended to them at the death of their father afld it still belongs to them, as- it has never been legally sold. The sale made to Elliot was vpid for several reasons ; 1, there was no judicial sale of the estate, 2, the personal property was not first sold to pay the debts' 3, the sale was not authorized by the judicial authority.
    T h e property of minors cannot be-sold without judicial authority : and if otherwise sold the sale will be set aside : Real estate cannot be sold until the moveables are exhausted. Partidas 6, tit. 16, Bey. 18, 1 Martinez 123, no. 25, 1 Brown's Civil Law 136, Domat, book 4, tit. 6, sec. 2, art. 24, 25, 26,,27. Here the authority was riot given.
    Th e mother lost the right of tutorship, by her second marriage, and was bound to preserve for the children of the first marriage, the estate which descended from their deceased father. Febrero, 
      2part, book 2, chap.H, \\,no. 3, Custom of Paris 2d Vol. 224, 6 Jurisp. 142, 3 Domat, book 5, § 2, 7 Martinez 128, no. 3, 1 Par/! A/bf. 383-^.
    Iw addition to the foregoing objections to the legitimacy of the sale, the defendant and appellee has no color of title, by wirtue of the deed under which he claims, as it never was completed and never went into effect. It is drawn in the usual form of notarial acts, and in the conclusion is stated to be drawn and passed before the commandant : but his signature is not annexed, which destroys its validity, as it is conclusive evidence to prove that the parties had changed their intentions, and would not acknowledge their signatures. But it was not the mother who sold. It was Reed with her consent, 1 Martinez 150, not 77, Domat, book 1, tit. 1, § 1, art. 15, book 3, tit. 6, § 2, art. 6, 1, Jurisp. 135, 0, — Parf. Not. 63-4-5.
    If it should be contended that the mother of the appellant made the deed it would give it no validity, as it is not in due form ánd accompanied with the requisite solemnities, Febrero 1st pari. chap. 4, § 4, no. 117.
    
      Porter, for the defendant.
    This suitis brought for 8800 arpents of land, which the appellants claim at their property, in right of their deceased father, Evan Mills. A recurrence to the statement of facts shews that the was a of acquests and gains, acquired during the marriage' of said Mills and his wife, under whom the appellee claim and from whom he purchased ; one half of the land then was hers, at the dissolution of the marriage by the husband’s death, and of this portion she had the right of disposal. I Febrero lib. 1, cap. 4, ¾ 1, no. 1, ibid. no. 4,, 6, 29 and 31. ' • '
    And-she did not lose, by her second marriage with Reed, the right of enjoying and disposing of these acquests and gains, 2 Febrero, lib. 2, cap. 5, ⅜ 2, no. 32, who cites, Ley 14 de Toro, which is Ley 6, tit. 9, lib. 5, Recop.
    
    For her half of the land then, we have acquired an undoubted title, and the decree of the District Court adjudging it to us must be confirmed.
    The remaining half 4400 arpents, the plaintiffs claim the three fourths of, as being heirs of Evan Mills, deceased, and the remaining fourth in right of their brother, who died a minor.
    / It is admitted that the mother lost her right of inheriting from her child, by her second marriage. But she remained in possession, and had a right to the' usufruct of the estate during her life, 2 Febrero cinco Juicios, lib. 2, cap. 5, § 1, no. 7, ibid. lib. 2, cap. 5, § 2 no. 30. ,
    To the claim we oppose prescription.
    A bona fide possessor with a just title, acquires a perfect right to immoveable property in ten years, Domat, vol. 1, book Z, tit. 7, sect. 4, 4 Febrero, lib. 3, cap. 3,5 lj no. 105, Cooper's Just. b. %tit. 6;
    
      And where the object claimed.is a divisible one it runs against each heir for his portion. Pothier vol. 4, page 647, no. 149, 4 Febrero cinco Juicios, lib. 3, cap. 3, ⅜ 1, no. 95.
    O’Con nor’s wife was more than thirty live years of age, when this action was commenced : being therefore ten years a major, without asserting her right, she and her hilsband are most clearly barred.
    T h e wife of Le Berge had not passed the age of majority ten years, when the appellee was sued. But by the evidence introduced, it was established that she was ten years married antecedent to the bringing of the suit, and that this property was a part of her paraphernal effects: there being no contrae* bf marriage between her and Le Berge, the husband. Prescription, which does N not run .against a wife for her dotal effects during coverture, does for her paraphernal. Vide 3 Febre-ro, lib. 3, cap. 2, § 4, no. 243.
    And they are both equally prevented from now claiming their portion in the deceased brother’s estate. Itis true their mother had the usufruct in this property, during her life, if she had not alienated it. But from the moment of the alienation the right of usufruct was destroyed, the heirs had a right to demand the property, and not having done so in time, they cannot now recover, Febrero cinco Juicios, lib. 1, cap. 7, § 2, no. 44.
    Le Be r g e and wife’s claim fails from another After the death of Reed, the secondhusband, Le'Berge entered into an arbitration with Jane Reed, the mother of his wife, for the rights of the latter in her father’s estate, the arbitrators awarded him 8 147, and in the account, where this balance is struck, a credit is given for the amount received for the sale of the property now claimed. It is true, we cannot shew a submission in legal form See. to this award.
    But we prove clearly his assent to it by shewing that he received the balance ascertained to be coming to him, by the persons appointed to arbitrate the claim then set up. And it is certainly unjust to permit him after tacitly aquiescing in the sale, by receiving his part of the price, now to turn round and say that sale is invalid, and pray to have it set aside.
    His authority to inake this compromise and administer fully his wife’s paraphernal effects is always presumed, when the wife does not make opposition, 1 Febrero cinco Juicios, lib. 1, cap. S, § 1, no. 43 and 44.
    Bushnel’s right to the one third of the 4400 arpents is not disputed, the two other heirs cannot, it is hoped, recover for the reasons above; stated.
    But it is said that the sale made to us is such, that prescription cannot be pleaded on it and the arguments by which this objection is supported aré of sucha nature as would require us to have a ... P 1 title m every way perfect.^ If we hada title óf that kind there would be no occasion to plead prescription, and if the law only afforded protection in that way, to those whose title was complete in every shape, it is evident it would be entirely useless in its provisions: they would, not he under the necessity to resort to it. Two things are necessary to enable a party in possession to plead prescription, good faith and a just title.
    The first is always presumed, and the contrary has not been shewn in this case. Domat, vol. 1st liv. 3, tit. 7, sect. 4.
    The just title consists, in buying from a person whom you have reason to believe has a good title. \Domat vol. 1, liv. 3, tit. 7, sect. 4, Pothier. (quarto editionjvol. 4, pages 587, 588, 614, 615, nos.' 28, 29, 98, 99.
    And as to the form of the act, a sous seing privé is a good title, when accompanied by possession, Pothier vol. 4, page 615, no. 99.
    All these circumstances combine in tins case and justify the plea the appellee has putin.
   By the Court.

A plantation of considerable value, which the appellee bought twenty-four years ago, and of which he has been in possession ever since, is the subject of the present conten- ; tion. ,

The nature of the claim of the plaintiffs and aPPe^ants 1S as follows : that plahtation was the common property of Evan Mills and Jane Elliot, father and mother of the plaintiff, now appellant, Helen, when Evan Mills died. Evan' Mills left four children, one of whom died in her infancy. After his decease, Jane, his widow, undertook (it does not appears by. what authority) to administer the estate, and kept, possession of the whole. Some time afterwards, she married William Reed, who, with her consent, sold-to the appellee the plantation now in contest, Jane Reed died about four years ago ; and in 1811, the appellants and their coheirs brought the present suit, claiming as their property the plantation left by their father, and alienated without right by their mother , and her husband. The judgment of the District. Court declares the alienation valid as to Jane Reed’s moiety, allows to each of the appellants’coheirs a share in the other undivided moiety, and rejects the claim of foe appellants, as barred by prescription.

The principal points made by the appellants are :

1. That the sale is void altogether on two grounds, one of which is that the instrument purporting to be passed before the officer exercising the functions of Notary Public, is not signed by that officer; and the other, that the contract is not made with .the solemnities necessary to bind a married woman. '

2. That the undivided moiety of the planta- • i_ • 1 c • • 1 , , tion, being the property 01 minors, could not be alienated, even by their tutor, without,the forma-lilies prescribed by law;

3. That Jane Elliot, widow Mills, havingIpst the tutorship of her children by' contracting a second marriage, had no right whatsoever to dispose of their property in any manner.

On the part of the appellee, the principal ground of defence is that the plaintiffs after they became of age, suffered the four years allowed by law to elapse without claiming against the sale made by their mother ; and that the appellants particularly remained silent on that subject during more than ten years, in consequence of which their claim is now barred by prescription.

Various other questions of minor importance have been raised during the discussion of this case, which, we will have occasion to notice, as we proceed in the investigation of the subject.

I. The first and most general allegation of the appellants, to wit, that the sale made by their mother is void in teto, can be soon disposed of. The half of ⅛⅛ plantation in contest belonged to Jane Reed* It does not appear that she brought it in tñarriage asa dowry; therefore it must be considered as paraphernal property. The alienation of such property by the husband, with the consent Qf the wife, was' a lawful act. The ins- ... trument of sale, should it be thought defecti ve in point of form as a public act, is certainly good as a private one, and is binding upon the parties and • . • their heirs.

But if the sale in question is valid as to the moiety of the wife, the case is far different with respect to the other half of the plantation. An effort has been made to show that shortly after the death of Evan Mills, his widow acquired by purchase some part of that other moiety ; for that having given in payment 4400 acres of that land to a creditor of the estate, who had a mortgage upon the whole, she afterwards paid him in some other manner, and he reconveyed to her the land which he had thus received. The pretended title, derived under such a transaction, cannot be the subject of a serious examination. The Court will, therefore, consider one half of the plantation bought by the apppellee as the property of the heirs of Mills, and proceed to enquire into the validity of its alienation.

A tutor has not the power of alienating the real estate of his pupil, except in the cases provided for by law, and then only with permission of the judge. If, contrary to this provision, he alienates it, the minor may, within four years after he has come óf age, obtain restitution of his property, on proving that the alienation has been injurious to him (Partida 6, tit. 19, lib. 2.) But when he has suffered the four years to elapse without claiming any restitution, his silence is considered as an approbation of the act of his tutor, and the purchaser of his property is quieted in his possession. In this case, therefore, if the plantation had been sold by the tutor of the heirs of Mills, there can be no doubt that, having left the purchaser of it, in peaceable possession during more than four years, they could not now disturb him.

But the estate of these minors has been sold not by their tutor, but by a mother who had no longer any right to act as their tutrix. The law declares in express terms that so soon as the mother,contracts another marriage, she loses the tutorship of her children. It has made it the duty of the judge immediately to appoint an other tutor over them ; and for the preservation of their property while it remains in the hands of the mother, it has provided that the estate of her new husband as well as hers shall be tacitly mortgaged. ( Thus, although she keeps possession of the estate of her children, and is bound to take care of it until it is surrendered into the hands of the new ' • ' , 1 tutor, yet from the moment she marries,.she loses the tutorship ipso facto, and has no lópger any right to act as tutrix. Any alienation, therefore, which she may afterwards make of the property of her children, is entitled to no more respect > than it .would be if made by a stranger ; and the si¡ence of the minors, which, in case of sales made . . " ~ by their tutor, is considered as an approbation, can receive no such interpretation in favor of sales made by persons having no • right whatsoever* over them.

The only manner then in which the appellants may have forfeited their claim to a part of the plantation in contest is by having suffered the purchaser of it to remain in quiet possession a length of time sufficient to acquire a title by prescription.

This title is pleaded by the appellee ; and it is not denied that the appellants have remained silent on the subject of their claim during more than ten years since Helen has come of age, and that both she and the appellee during that time lived in the same district.

But the appellants contend

1.'That this is a prescription for which a just title and good faith are requisite, and that the appellee shews neither';

2. Th at the plantation in contest was an undivided property between thé appellant Helen, and her younger sisters, and that the right by prescrip- , tion having not been acquired against them, her own share has been thereby preserved.

. The just title and good faith required' by law in the person claiming means no more than that he came'to the possession of the thing by virtue of some licit contract, por alguna derecha razón, (as it is expressed in law 18,th. tit. 29, parda ?.?*,) such as a sale, a donation, &c. into which-he ' entered bona fide. That the present appellee acquired his possession by these means cannot be questioned. He bought this land from Reed and his wife as their property, and faithfully paid the full price of it. He comes forward with both a just title and good faith.

But, it is further objected that prescription could not take effect against the appellant, Helen, so long as it did not run against her minor coheirs and joint owners of this undivided plantation. Upon this point it appears to the Court that the principle has been misunderstood by the appellants,. In order that the prescription which does not run against minors may be also suspended in favor of the co-interested who are of age; it is not enough that the property, to which they have a right, be undivided; their claim must be indivisible. “If “ the claim, “says Pothier,” has for its object some-. “ thing divisible natura aut saltern intellectü, as “ if it is a claim for a certain estate, the time of the “prescription which does not run against the “ minors for their part of the claim , does not cease “to run against those who are of age-for their “parts.” ‘

It is, therefore, the opinion of this Court that the appellee has acquired a title by prescription to the fourth part of the half of the plantation in coh-1 r test, which was the share of the-appellant Helen in that property as one of the heirs of Evan Mills.

But it is further contended by the appellants that of the four shares into which the estate of Mills was to be divided, the usufruct of one fell to Jane Reed by the death of one of her children ; and that while she enjoyed that usufruct the appellants coujd not claim their share of that portion, wherefore their right to that at least cannot have been prescribed against. To this it is answered by the appellee that Jane Reed, by alienating the property of which she was only usufructuary, forfeited her usufruct, and that from thence the appellants hadas good a right to claim,that property' as their own part of the inheritance of their father.

It is the opinion of the authors and particularly of Febrero that the mother does not, as other, usufructuaries, forfeit her usufruct by alienating the property which she is bound to keep and preserve for her children, and that such alienation is valid during her life time arid can be revoked only after her death. Admitting this to be law, the right of the appellants to claim against the alienation of this portion (lid not begin until about four years ago, and consequently is- not barfed by prescription.

Thus, although the judgment of the inferior court appears to us, in every other respect, strictly conformable to law, it must be reversed as to this particular point.

It is, therefore, adjudged and decreed that the judgment of the District Court, rejecting in toto the claim of the appellants, be reversed ; and that the appellants do recover one third part of the share of their deceased sister in the undivided moiety of the plantation in contest.  