Delahoussaye v. Dumartrail

Martin, J., delivered the opinion of the court. The plaintiff is appellant from a judgement by which the defendant’s plea of prescription was sustained. The object of the suit was to render a tract of land in the possession of the defendant liable to the plaintiff’s claim on his curator, whose property the land was, theretofore. The defendant pleaded that the plaintiff had by a notarial act, in which he was assisted by his curator, renounced his right of mortgage on the premises; and although he, the plaintiff, was then a minor, he could not now seek relief against such an act on the score of nullity or lesion, as more than four years had elapsed between his coming of age and the date of the renunciation. The contract under consideration is one for the alienation of minors’ real rights. Such rights he cannot alienate without the authority of the judge. The alienation before us is a gratuitous one which no court could sanction. The obtention of such an authority is an essential formality the absence of which renders the alienation absolutely void. And the Civil [371] Code provides that the contract of a minor, even assisted by Ins curator, if unaccompanied with the formalities required by law, is void, and the party may obtain the rescission of it by an action of nullity, or be relieved against it on his exception: '■’•quid temporalis sont ad potentum perpetua sont ad excipiendum.” The plea of prescription was improperly allowed. It is, therefore, ordered, adjudged, and decreed, that the judgement of the District Court be annulled, avoided, and reversed, the plea of prescription overruled, and the case remanded for further proceedings; the appellee paying costs in this court.