
    
      CARRABY vs. DESMARRE & AL.
    
    Appeal from the court of the first district.
    a<* ⅛⅝ to real property must stiii be regís-tered in the tJ“e
    asM^is°"r!'|ie ⅛⅛ ifstat-ed.itbecomes a question of intention what depth passes.
   Martin, J. 7

delivered the opinion of the 1 court. The plaintiff sues one of the defendants as purchaser, and the other, sheriff of the parish, as vendor of a tract of land, as the pro-pertv of Gravier, claimed by the plaintiff vendee of the latter;

_ ....... . Desmarre insisted on his title as purchaser ' under an execution, and the other defendant justified under the writ.

There was judgment for them, and the plain* tiff appealed.

The appellant rests his ^title on a notaría} Gravier, executed in New Orleans, long J ° before the judgment, on which the execution jgsue{j^ The ian(j i¡es jn the parish of Pla-quemmes, and the sale was never recorded there.

In the act of March 25, 1810, ch. 25, section 7, it is provided that no notarial act concerning moveable property, shall have any effect against third parties, until the same shall have been recorded in the office of the judge of the parish, in which such immoveable property is situated. 3 Martin's Digest, 140, 7.

But the appellants’ counsel urges this section has been repealed by the new Civil Code, 2415, 2417, 3318, &, 3521.

The first article cited provides that sales of immoveable property shall be written, by authentic or private act. Verbal sales shall be null.

The next provides that such sales, by private act, shall have effect only from the day such a sale was recorded in a notary's office, and the delivery of the thing sold took place.

The 3318th article relates to mortgages only, not to sales.

The last provides for the repeal of all acts of the legislature for which there is a special ° x provision in the new code.

Now, the laws anterior to the code provided for the form and effect of sales. Those of immoveable property were to be written—so they must still be under the code. As to the effects of notarial sales, the three former ones had established a distinction; the notarial had no effect against third parties, until recorded in the office of a notary. Civ. Code, 345. art. 3’

As to the effect of the notarial act, the new code has no special provision, therefore the 3421st article does not repeal that made by the act of 1810.

As to the effect of the private sale, the new code adds a new requisite, the actual delivery of the property, 2417. So this new special provision repeals the corresponding article of the old code.

We therefore conclude, the district judge held correctly that, the appellant could not avail himself of his notarial sale for want of a registry.

His counsel further urges that the sheriff’s sale, under which the appellees protect themselves, was not recorded. Be that as it may, till the appellant produced a title, the appellees were not bound to produce any.

Last]y} the appellant’s counsel contends, that a party who has no title at all cannot urge the want of registry of the owner’s title: and as to all the tract, except the arpent and one half immediately in front of the river, Desmarre is without any title—the sheriff having sold an arpent and one half of land on the Mississippi, without stating any depth.

In sales of land on the Mississippi, the tract is sometimes described by the extent of its front on the river, and the names of the owners of the tracts above and below. Nothing is said of the owner of the land in the rear; because generally the tract extends to another stream, or to an uncultivated swamp. In such a case the ordinary depth of forty arpents is presumed as that which the vendor possessed, unless the contrary appear.

The question is then one of intention as to depth, in the solution of which the court is aided by the situation of the land, and the price for which it was sold.

In the present case we do not think the district court erred, in concluding that the depth of the tract, as owned before the sale by Gra-vier passed,

Seghers for plaintiff—Denis for defendant.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be affirmed with costs.  