Verret v. Theriot

Eustis, J., * delivered the opinion of the court. Some time in the year 1818, Solomon Verret, then living in the parish of Lafourche Intérior, died inlestate, leaving his [109] father, Jacques Verret, and his brothers and sister ; the three latter plaintiffs in this suit. His father took possession of the estate of the deceased, as the heir of his son, on the 27th of January, 1820, and sold to the defendant a trqct of land belonging to the estate, by an act of sale, legal in point of form. Jacques Verret, previous to the death of his son, had contracted a second marriage. Solomon Verret left no descendants. The plaintiffs have instituted this ,suit for the recovery of the land sold to the defendant, alleging themselves to have had the sole right to the property of their deceased brother at the time of his death, on account of the second marriage of their father, who, they allege, merely retained the usufruct of it during his life. The defendant pleaded the prescription of ten years resulting from possession of the land, in good faith, under a just title. It has been contended at bar, that on the death of the brother, Solomon Verret, the property was held as a substitution, and that the defendant’s prescription could only commence from the date of the father’s death, which took place in 1833. We are of opinion that, under the 227th article of the Code of 1808, page 258, the estate of the deceased passed to his brothers and sister, the plaintiffs. The father would have had the usufruct had his children been minors, and not married. See Matienzo, Commentaria, lib. 5, tit. 1, 1-9, gloss. 1. Nos. 1 and 2; Novissima Recopilacion, lib. 10, tit. 5, law 3; Gomez ad legis tori, law 48: Voet ad Pandectus, lib. 23, tit. 2, §103. The usufruct given by the Spanish laws to the father of the adventitious property of the son, resulted from the paternal power under that system. Institutes of the civil law of Spain, book 1, tit. 8 ; Partida 4, lit 17, l. 5. By the code of 1808, the paternal power was much modified, and the usufruct of the father resulting from it w.as limited to the minority of the son. See Code, article 37, et [110] seq., page 52. The good faith of the defendant is questioned by the plaintiffs, and they refer to the act under which he purchased, as proving that he had knowledge that Jacques Verret acquired the land by the succession of his son. We do not think this circumstance sufficient to establish his want of good faith. The father might have acquired it lawfully by testament, and there is nothing in the evidence which proves that the defendant was apprised of the want of title on the part of the vendor; on the contrary, we think that he became possessed of the property fairly and honestly, and by virtue of a contract of sale, regular in matters of form, without notice of the plaintiff’s claims, and having retained possession of the same publicly, without interruption and in good faith, for more than ten years, that he has acquired against the plaintiffs a title to it by prescription. Where a party-holds and possesses property honestly and by virtue of a contract of sale, regular in matters of form, without notice of the plaintiff’s claim, and having retained ' possession publicly, without interruption, and in good faith, for more than ten years, he acquires a title by prescription. The judgment of the court below is, therefore, affirmed with costs. Footnotes [*] This opinion was delivered at March terra, 1839, but suspended on a rehearing.