Buhols v. Boudousquie

6 Mart. (N.S.) 153 | La. | 1827

Porter, J.

delivered the opinion of court. On the trial of this cause, which was • • i • ii i • a suit m relation to the boundaries oi land owned by the parties, the plaintiff offered in evidence, a sale made twenty-three years ago, to the person under whom she claims.— The instrument offered was by public act, but was executed by an attorney in fact of the owner, whose authority to sell was evidenced by a power, sous seing prim, annexed to the conveyance. The defendant objected to an introduction of the bill of sale, unless the authority of the agent to make it was first proved. Of this opinion was the court, and the plaintiff excepted.

The principle on which the objection was ma^e a>id sustained is certainly correct, but we think, subject to an exception in cases like this. After possession for twenty-three years, a period of time sufficient to enable the purchaser to acquire by prescription against the owner, the instrument should have been permitted to go to the jury, leaving it to them, under the circumstances, to say whether his assent to the contract must not be presumed. The bill of sale was authentic. The possession was public and ancient. The case, therefore, comes completely within the instances put by the w ri-ters to illustrate the maxim, Semper qui non prohibet aliquem pro se intervenire, man-dare creditur. Digest, liv. 50, tit. IK, law 50. Pothier Conirat de Mandat, No. 29 99. Curia Phill. verbo factores, No. 2.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be annulled, avoided and reversed; and it is furiher ordered, adjudged and decreed, that the case be remanded, with directions to the judge a quo not to reject the deed from Tou-cher to Parant, although the plaintiff may not prove the authority of Andry to make it: and it is further ordered, that the appellee pay the costs of this appeal

Ripley and Conrad for the plaintiff, Hen-nen for the defendant