| La. | Apr 15, 1839
delivered the opinion of the court.
In 1807, Francois Le Breton d’Orgenoy, the- ancestor of the plaintiff, and Antonio Ramis, entered into an agreement, by notarial act, to the following effect:
“ That whereas Ramis had sold to d’Orgenoy, in July, 1805, an arpent and a quarter front of land on the Bayou Road, by four and a half arpents in depth, for the sum of two thousand six hundred dollars; and in January, 1806, three quarters of an arpent front of land on the Bayou Road, with the same depth, for the sum of sixteen hundred dollars, which two sums made together that of four thousand two hundred dollars. For the same consideration, he, the said*386 Ramis, sold, ceded, abandoned and transferred to the said d’Orgenoy all the depth which the aforesaid two arpents of land might have under his title, over and above the four arpents and a half already conveyed, to be by him enjoyed and possessed as his property.”
On the 11th of November, 1836, both parties to the contract being then dead, the heir at law of Ramis sold to the defendant, for a valuable consideration, the property attempted to be conveyed by the aforesaid act. The defendant having, shortly after his purchase, advertised it to be sold in lots at public auction, the plaintiffs enjoined the sale, and claimed title under the conveyance of Ramis. The defendant cited his warrantor, who answered, that she also claimed title under Ramis, her father, by inheritance, and that she never had been legally divested of it in favor of the plaintiffs, or of any other person. The District Court gave judgment in favor of the plaintiffs, and the defendant appealed.
Ramis had a good title to a large tract of low land back of the four arpents and a half, and the rights of the contending parties in relation to it depend exclusively upon the legal effects of the notarial act already mentioned. The defendant’s counsel contends, that the consideration named in this act had already been received by the vendor, as the consideration of the previous sales; that the act purports, upon the face of it, to be a sale, and containing no price, is null . ’ ’ or? tltld VOld.
The facts may be as stated by them, but the consequences -which they deduce from those facts are not justified by law. J The price of a sale must be serious; and Pothier says, that a price which is out of all proportion with the value of the thing sold, invalidates the sale: for instance, if an extensive landed estate was sold for a crown, the price would not be serious, for the price being nothing more than the valuation of the thing which the contending parties have agreed upon, a price Which bears no proportion to that value cannot pass for a serious valuation, and is not in reality a price; but the same author goes on to say, that such a contract is a donation, improperly called a sale. — Pothier Conlrat de Vente, 19.
The Roman laws quoted at the bar all say that a sale without a price, or with an imaginary price, is not a sale, and is not binding as such upon the parties, for the want of one of the substantial requisites of that species of contract: but under that system of jurisprudence, as well as under ours, such acts took effect as donations, provided they contained nothing contrary to public order; and provided, further, that the purchaser could receive a donation from the vendor, and that no injury resulted to third persons. Those laws seem to have made no difference between acts stipulating a price which the vendor did not intend to receive, and such as contained an imaginary price, or no price at all; and, if the sale of a valuable estate made for a crown is a donation, because a crown is not a price, it is difficult to conceive why a sale mentioning a consideration which is less than a crown, or, as the defendant alleges in the present case, absolutely nothing but words, should not carry with it the same legal effects. Voét, in his Commentary upon the Pandects, goes fully into the subject, and treats it with his usual precision. Speaking of sales without a consideration, he says : — “ Nec repróbala fuerint, si quis eas celebrare volue-rit, quoties ñeque legibus publicis, ñeque tertio per hujusmodi imaginarias venditiones fraus fit. Ñeque subsistant inter eos, inter quos, jura donationes prohibuerunt. Et ex hisce explicandum puro, quod a Paulo scriptum est, nudam & imaginarium vendilionem pro non facta esse, & ideo nec alienationem eius rei intelligi; scilicet pro non facta est, in quantum valere nequit tanquam ven-ditio, quia, deficiente pretio, emtio in sui deficit substantia; sed quod dominium non transibat ex venditione, ex donatione tamen, qua imaginaria inest venditioni, transferebalur mediante tradi-tione.” — Commentarius ad Pandectas, tom. 3, lib.18, tit.l, Z.l.
Under the Spanish laws, it was not necessary to mention, in an act of donation, the value of the thing given ; and the deed under which the plaintiffs claim would be similar to acts of donation, as they were made at the time of its date, if Ramis bad said I give, instead of saying I sell. The words which the notary used, without a proper understanding of their legal meaning, ought not to prevent us from carrying into effect the intention of the parties.
Indeed, we do not consider the legal question which this case presents as open for argument at this time. So far back as 1818, this court decided it, in the case of Holmes and others vs. Patterson, 5 Martin’s Reports, 693. That decision went much further than is necessary for the purposes of the present case; for the donation, in that instance, had not been accepted by the donee before the death of the donor, and neither the act of donation, nor the possession of the thing given, had been delivered. The court held the act to be valid notwithstanding, because the donor had made no other disposition of the property. Without expressing our . ,, , . , . , . . concurrence in all the views taken by the court of the legal consequences of the facts of that particular case, we adopt the rule settled by the decision, that a sale without a price is a donation; and, considering the loose and irregular manner in which title deeds are generally made in newly settled countries, and the paramount duty of courts to maintain ancient possessions, and to give effect to the titles under which they,are held in any manner which the law justifies, we hold it to be founded on the soundest principles of justice, and the decision upon which it rests will never be disturbed by us.
The plaintiff’s ancestor acquired the land in controversy under a donation from the defendant’s author, and they have been in possession under it ever since. That donation, as long as it exists, is conclusive against the pretensions of the defendant; and unless it had been set aside and rescinded, in an action instituted for that purpose, the defendant had no right to disregard it, by attempting, as he has done, to sell the property which the plaintiffs possessed under it. — — St. Avid vs. Weimpreinder’s Syndic, 9 Martin, 648; Ham vs. Herreman, 1 Martin, N. S., 536; Barbara vs. Saucier, 5 Ibid, 361; Yocum vs. Bullitt, 6 Ibid, 364.
„ It is therefore ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs; reserving to the defendant his rights on the warranty.