
    
      FRANCOISE vs. DELARONDE.
    
    East’n District.
    
      July, 1820.
    Appeal from the court of the first district.
    The purchaser of the real estate of a minor cannot avail himself of the prescription, brevi temporis, if all legal formalities were not observed in the sale.
    
      Livingston, for the plaintiff.
    In this case, the facts are that the plaintiff, being a minor then aged of four years, in the year 1792, her guardian Antonio Mendez, purchased a lot of ground with a small house thereon for her benefit, the price of the said lot being a sum of money received for a slave sold by the guardian.
    That in the month of January 1806 (the plaintiff then being eighteen years of age) a petition was presented, by P. Pedesclaux, as attorney at law, in the name of the mother of the plaintiff and of the plaintiff herself, to judge Prevost, stating that it was for the interest of the minor that the said lot should be sold and praying leave to sell the same. This petition was never filed, but the judge wrote on the back : “let the prayer be granted the petitioner giving security for the amount of the sale, 10 January 1806, J. B. Prevost.”
    This petition, in original, is inserted on the notary’s register and immediately after follows a sale from the mother (stiling herself mere naturelle en sa qualite de mère autorisée par le décret du juge annexé) to the defendant for the sum of four hundred dollars paid in the presence of the notary. This sale is dated the same day with the order of the judge, 10 January, 1806, and it is admitted that the defendant has been in possession more than ten years after the plaintiff came of age, and, before bringing this suit, the plaintiff always residing in this city.
    The law questions on which the decision must depend are : did the conveyance transfer the property to the defendant ? if it did not, is it a sufficient foundation to support his plea of prescription ?
    I. The first question will not admit of much debate. The whole proceeding was irregular.
    1. The judge of the superior court could not act in any other manner, than that prescribed by the act organizing the court, which passed in 1805. By that act all petitions were to be filed with the clerk. The delivery of the order to Pedesclaux on a petition never filed in the court, was extra judicial and void.
    2. The mother could not act for the minor, then 18 years of age, without showing that she had been appointed curatrix.
    3. The attorney could not appear for the minor without a special appointment, as curator ad litem.
    
    4. The application to sell being made, as was said, for the benefit of the minor, she ought to have signed the petition herself, and it appears in evidence that she could write.
    5. The order given by the judge was illegal because it did not appear that the minor consented to the sale ; because no evidence was offered that it was necessary or useful for her to sell ; because there was not even an allegation that the mother was curatrix, and, if the judge had looked at the title of the land petitioned to be sold, he could have found that the minor had a curator who was not the mother ; because in the order to sell, it ought to have been expressed that the sale should have been at auction and after an appraisement ; because if any security was ordered for the purpose of securing the minor’s rights, it should have been directed to be taken before the sale.
    6. The sale was wholly illegal : not signed by the curator, and not made in the form prescribed by law.
    7. The security directed by the judge’s order for the purchase money was never given.
    These objections to the sale are supported by the following authorities which I refer to, after stating all the points, because most of them (the authorities) refer to all the points I have made.
    
      When the mother wishes to act as guardian she must be appointed formally. The form of such appointment,Part. 3, 18, 95. Form of the appointment of a guardian ad litem, ibd. 261.
    To prevent the improper alienation of the estates of minors, they are not to be sold except to pay debts, and even then, with the order of the judge, publicly at auction, after a notice of thirty days. The form of the sale is set forth, “in order that the purchaser may be sure of what he purchases.” In this form of sale the reason for selling, to wit ; the debt, is recited, the application of the guardian, the exposure at public auction, and the notice of 30 days, the name of the purchaser, the certificate that the money was paid by the purchaser, and that the guardian in the presence of the notary had paid it over to the creditor of the infant in discharge of his debt, are all essential parts of the act, to which must be added, says this wise law, that the judge must certify that the guardian was duly appointed, that the debt which was the cause of selling was due, and also all the other points above enumerated, ib l. 69, n. 2.
    The guardian shall not give, sell, nor alienate, any of the real estate of the minor, unless he do it to pay the debts of the estate, or to marry one of his sisters, or himself, or for some other lawful cause which cannot be avoided. And then not without the order of the judge. Part. 6, 16, 18.
    
      Si vero debita solemnitas non est observata, tunc ipso jure non valuit venditio, neque est opus restitutione. Part. 6, 19, 5, n. 3, ad fin.
    
    All sales by order of a judge must be at auction. Part. 5, p. 52, 4. Febrero 3, 3, § 1, n. 67, 71.
    None of the essential requisites for making a good sale having been observed, the conveyance made by the mother in this case was of no effect and could not transfer the property, and it therefore still belongs to the plaintiff. We must then enquire,
    II. Whether it is a good foundation for the plea of prescription ?
    This, it was agreed in the court below, was a bar in two points of view ; 1st. because minors must apply for restitution within four years ; 2d. that the prescription of ten years inter presentes applies to give the defendant a title in this case.
    On the first point it is sufficient to observe, that this is not an action for restitution which is barred, I acknowledge, by four years after the cause was known. That action lies where the sale of a minor’s estate was made, according to the forms of law ; but when his interest was injured in the price then, in favour of his age, the law gives him the right of redemption by repaying the price in the action of restitution. This action, however, is brought on no such suggestion. We alledge that there was no legal sale, that the property never passed but is still in us and therefore we want no relief by way of restitution, but by revindication of the property. And when the property of a minor has been conveyed without the requisite formalities we find, by express authority, that there is no need of the action of restitution, but that the sale being ipso jure void, the minor may at any time revindicate the property.
    To this effect is the authority above quoted from the Partidas. 4 Febrero, lib. 3, c. 3, § 1, n. 67.
    When the minor sells without just cause and without the solemnidades prescriptas por derecho, the sale is ipso jure void and to rescind it he has no need to ask the aid of restitution, altho’ it may be done to pay his debts, 4 Febrero 3, 3, § 1, n. 67.
    We see what are the just causes and requisite solemnities to render the sale valid, ibd. 69, 70.
    “Y se advierte lo primero que omitiendose las solemnidades expresadas no necesita el menor implorar el auxilio de la restitucion in integrum, porque quando la ley irrita y annula el contrato cesa el oficio del juez acerca de ella por lo que puede revocar directamente la enagenacion del poseedor.” ibd. 71.
    We have then only to enquire, whether the sale be a sufficient foundation for a title by prescription.
    If I have succeeded in shewing that the sale to the defendant was deficient in the essential forms, this will be an easy task ; for our statute, Code Civ. 488. art. 70, directs us on this point : “when a title is defective, with respect to form, it cannot become the basis of the ten or of the twenty years prescription.”
    And again, art. 67 and 68, the title must be a just title, and a just title is one by virtue of which property may be transferred. Here the title wanted those forms which alone could transfer property.
    The title must be a just one : that is such a one as would convey the property, if the vendor was the owner, and the purchaser must have legal cause to believe the vendor to be the owner. Now here the title, so far from being one translative of property, is declared to be ipso jure void ; if so, no title at all and of course no foundation for a prescription.
    Pothier, who lays down the same position, illustrates it by several cases. The institution as an heir of a person incapable of inheriting is not a just title and therefore if the instituted heir ignorant of his incapacity should take possession, yet he could not prescribe. Pothier, traité de la prescription, n. 85. The same of a legatee incapable of receiving.
    A donation between married persons carries the same consequences, ibd. n. 87.
    If, for example, you purchased from a tutor, an estate belonging to his ward, without the compliance with any of the formalities, required for the alienation of a minor's estate, you will not be able to prescribe, and your title will not avail you. Vainly will you say you thought the seller could sell. You ought to have known the law decided the contrary and you cannot fail being classed among purchasers who knew the defect of their titles. Nouveau Dunod, 26, 27.
    Here all the defects were glaring and were such as the purchaser was bound to notice.
    By the title deed for the property which he purchased, it appears that the mother was not the guardian but that A. Mendez was.
    The judge ought to have ascertained this point before he gave the order ; but as the purchaser must have looked at the title deed before he paid his money, he must have discovered that, in treating with the mother, he was not treating with the guardian.
    If it should be answered to one of the objections I have made, that the purchaser was not bound to see that the condition for giving security was fulfilled, which the judge imposed in ordering the sale. I reply that, if he wished to secure his purchase, it was his duty to see that all the conditions were complied with. Whenever a man lends money to refit a ship to the master, in a foreign port, he cannot recover unless the money has been thus applied. When a trustee is authorised to sell to fulfil a trust, the purchaser must not only pay his money, but see to the application of it. And in the very case before the court, we see by the forms laid down by the Partidas that this is of the essence of the contract, directed to be inserted in it and certified by the notary.
    On the whole, I trust I have shown that the title set up by the defendant conveyed to him no property.
    That it was so defective as not to be voidable only, but ipso jure void.
    That of course, it was not necessary to sue for restitution, and that therefore the limitation of that action does not apply.
    And that lastly this is not such a title as will support the plea of prescription.
    
      Canonge, for the defendant.
    The vendee acquired a good title, because the land was sold on a special order of the judge, after a full statement of the circumstances which rendered the sale of the minor’s property necessary. The judge imposed no other condition, but that the tutrix should give security for the amount of the price. This must be presumed to have been done, since the contrary is not alleged.
    The act of 1805 relates to suits, and speaks of such petitions, by which suits originate, only, and as applications of the nature of that on which the order issued are made at chambers, no record is preserved of the evidence by which the judge is satisfied of the propriety of allowing the prayer of the applicant : his fiat is presumptive evidence that the necessary facts, to support the order, were made out to his satisfaction.
    The sale was executed in the manner in which it was ordered by the judge.
    Finally, the plaintiff, as soon as she came of age, might have brought her suit to annul, the sale or otherwise sue the defendant. This would have enabled him to have his recourse against the plaintiff’s mother and to obtain the restitution of the purchase money. More than ten years have elapsed, since this might have been done. The plaintiff must be presumed to have acquiesced in the sale, and is too late in her application to claim the property sold.
   Mathews, J.

delivered the opinion of the court. This suit was instituted by the appellant, who was plaintiff in the court below, to recover a lot of ground, in the city of New-Orleans, as described in the petition. The defendant, in his answer, claims title to the property in dispute by purchase and by prescription.

The facts in the case show that the appellant was the owner of the lot for which she now sues—that in the month of January, 1806 : being then eighteen years old, she and her mother, her natural tutrix, applied to a judge of the superior court of the late territorial government, for permission to sell the lot, by a petition, in writing. And that an order was obtained from the judge, authorising the sale, as requested, and requiring security on the part of the seller for the price. The petition and order of the judge are incorporated in the act of sale, made by the mother, as tutrix of her daughter, to the defendant and appellee. Under this sale, he has been more than ten years in possession, since the plaintiff came to the age of majority, and before bringing this suit.

On these facts, two questions of law are raised for the consideration of this court. Did the conveyance transfer the property to the defendant ? If it did not, is it a title sufficient to support a plea of prescription ?

As to the first of these questions, we are of opinion, with the counsel of the appellant, that the act of sale was so informally and illegally made, as not to convey a valid or indefeasible title to the appellee. Tutors have no right to sell the immoveable property of their wards, unless under par

ticular circumstances and conformably to specific formalities prescribed by law. These are fully laid down in Partida 3, 18, 60, which was in full force, at the time the sale was made, and were not complied with.

Whether or not the conveyance be a sufficient foundation for the prescription of ten years, is a question of more difficult solution.

To acquire an indefeasible right to property, under the prescriptions of ten and twenty years, a just title, good faith and uninterrupted possession are necessary on the part of the possessor. These are fully explained by different writers on the subject. A sale made in due form, which would be translative of property, if the seller were the real owner, although he be not, if the purchaser be ignorant of that fact, is a title sufficiently just to prescribe under. The good faith requisite for prescription is an honest belief by the possessor that he has acquired a title to the property which he possesses : justa opinio quœsiti dominii. In the present case, there is no dispute about the manner or uninterruption of the possession.

There is no doubt of the act of sale under consideration being sufficiently formal, had the seller transferred the property as her own, to have given a title to the defendant sufficiently just to prescribe under, if he was ignorant of the fact that the property sold belonged to another person. If the sale had been made by the minor, in propriâ personâ, being above the age of fourteen years, it is believed that, according to the 59th law of the Partida, above cited, it might be a good foundation for the prescription relied on by the defendant, and he ought to be considered, under that law, as a possessor under a just title and in good faith. But the deed has neither of these forms : it purports to be a sale, made by a tutrix of the property of her ward, and as such is wholly informal and illegal, the requisites of the law cited not having been complied with. The vendee saw most clearly that he was purchasing from one person the property of another, and qui sciens alienam rem emit pro emptore possidet, licet usu non capiat, ff. 41, 4, 2.

From the order of the judge, it is presumable that the defendant believed that he gained a just and legal title to the lot, under the act of sale, supposing that all the formalities required by law had been complied with. In this he mistook the law : for the manner of sale and forms required by law were not pursued ; et nunquam in usucapionibus, juris error possessori prodest. ff. eod. lib. 3, 31,

However much the commentators of the Roman law have differed the one from the other, and the same person from himself at different periods, on the subject of mistakes of law, they seem to agree in this, that juris error is never a good foundation for acquiring property. 2 Evan’s Pothier, 409, d'Aguesseau's dissertation, 2.

In the opinion of the district court, it is assumed as true that the act of sale, under which the defendant claims a right by prescription, was executed in due form, as required in such cases by law. This is not so. In sales, made by tutors of the real estate of their pupils, it is required by the 60th law of the Partida above cited, that in addition to the order of the judge, authorising the sale, the property be advertised during a certain length of time, and that it be sold at auction, &c. all which is to be expressly mentioned in the deed. The title of the defendant and appellee, being defective in this respect, cannot be the basis of the prescription. Cod. Civ. 488, art. 70. Possessors do not acquire a right to the property purchased by them, in virtue of the kind of prescription, by which the defendant attempts to make out his title, in the present case, solely in consequence of the real owner not pursuing his rights and making his title known, within the period limited by law. A colourable title and good faith on the part of the possessor (as we have already shown) form the legal basis of a right gained by prescription of the shorter period. In prescribing by a lapse longi temporis, wherein no title is necessary, the right is lost to the owner and acquired to the possessor entirely by the latches and acquiescence of the former. The neglect of the plaintiff and appellant, in not claiming the property, within the ten years since she came of age and her acquiescence under the possession of the defendant and appellee, do not, in our opinion, amount to a confirmation of title in the latter, for the reasons above adduced.

It is, therefore, ordered, adjudged and decreed that the judgment of the district court be annulled, avoided and reversed, and this court proceeding to give such a judgment as in their opinion ought to have been given below, it is further ordered, adjudged and decreed that the plaintiff and appellant do recover, from the defendant and appellee, the lot of ground, &c. described in the petition, and that the latter pay costs.  