6 Rob. 329 | La. | 1844
This Controversy has arisen in relation t'o the partition of the'community of acquets, Which existed between Samuel Packwood and his late wife, Alice Packwood. One of the heirs of the "deceased, Emily Packwood, died leaving two daughters, now married t'o Jañies A. Gasquet and Julian Neville-. ■ They claim, as their property, a lot situated in Magazine Street, which has been inventoried as owned by the community, but which they aver belongs to the succession of their deceased mother, in virtue of a donation of it made to her by Samuel Pack-wood, their grandfather, and they pray that it be not included in the partition. ' The evidence which is adduced of this donation, is to be found in a letter of Samuel Packwood, to Gregnberry Dorsey, then the husband of his daughter Emily, dated New London, thé 1st of September, 1817 ; and it is shown, that from that time, she has always been in the possession,and enjoyment of the property, thus given to her. As to the donation itself, it is clearly null and void, not having been passed before q Notary Public and two witnesses," as required by the Code of 1808, in force at the time it was made. Page 220, articles 53, 54. But the question is as t’o the effect of the donee’s possession, and the voluntary execution of the donation on the part of Samuel Pack-wood. It is contended, and the inferior Judge'has so decided, that the donor who has voluntarily executed a donation null for want of the formality required by law, cannot plead its nullity.
The opinion of the court below is based exclusively on the authority of Toullier, who, in commenting on articles of the Napoleon Code, identical with those of our late Civil Code, comes to the conclusion, that although the donor cannot, by any confirmative act, supply the defects of a donation, inter vivos, null in form, yet he can ratify it, and preclude himself from pleading its nulity, by voluntarily executing it. Toullier, Vol. 5, No. 173 and 189; 8 Vol. No. 526. Whatever may be our respect for
It is, therefore, ordered that the judgment of the District Court be reversed ; and it is ordered and decreed, that the lot in Magazine Street, between Poydras and Lafayette Streets, as described in the inventory of the estate of the late Alice Packwood, be, and it is hereby declared, to belong to the community of gains and acquets, heretofore existing between her and the plaintiff, S. Pack