The judgment of the court was pronounced by
Rost, J.
This is a petitory action. The plaintiff, as heir and sole representative of Pierre Delabigarre, claims the undivided fourth of a portion of the alluvion in front of faubourg St. Mary, which was a source of fierce litigation, sometimes threatening the public peace, from the change of government to the date of the contract entered into, between the parties in possession of it at the time and the city of New Orleans, on the 20th of September, 1820. She avers that her father acquired his title, on the 20th of March, 1804, from Jean Gravier, who held under a regular chain of conveyances from the original grantee; and that, by subsequent arrangements with the late Edward Livingston, who owned the other three undived fourths, the land now claimed has been ever since held in common between them. She finally alleges that Municipality No. Two is in possession, and claims title. She prays that the heirs of Livingston be made parties to these proceedings, that Municipality ■ No. Two be cited, and that she may have judgment for the undivided fourth part of the batture claimed. She farther prays for a partition against the heirs of Livingston, for a writ of possession, and for general relief.
The widow and heir of Livingston answered that, they decline taking any part in the litigation now pending between the plaintiff and defendants, and protest against having their rights precluded by this litigation ; but they say that if the court should order a partition to take place as prayed for by the plaintiff', they have no objection that said partition, in that event, should be made on the basis and in the proportions alleged by the plaintiff to be the true basis for such partition.
The other defendants filed a general denial, and opposed to the plaintiff the contract of the 20th of September, 1820, signed by B. Lafon, executor of Pierre Delabigarre, by which it is alleged that the entire batture in front of faubourg St. Mary was given, ceded, and conveyed to the city of New Orleans. In a supplemental answer, the defendants set up an exclusive title in themselves to all the batture.
The Third Municipality here intervened opposing the pretensions of all parties, for the purpose of preserving its legal rights under the contract of 1820, apd the act of division of 1836.
The plaintiff afterwards filed a supplemental petition, alleging the nullity of the contract of 1820, on the ground of want of authority in the executor to make it. This petition farther alleges that the original petition erroneously states that the portion of the batture therein described was, at the lime of .the death of her father, held in common and undivided between him and Edward Livingston, and that in fact the said Livingston only acquired his title on the 3d of May, 1819, from the heirs of Bertrand Gravier. The plaintiff farther alleges that, in 1807 or 1808, the title under which she claims was finally adjudicated upon in favor of Jean Gravier by the Superior Court of the Territory of Orleans, in a suit in which the said Jean Gravier was plaintiff, and the Mayor, Aldermen, &c. of the city of New Orleans were defendants; which judgment it is alleged remains in full force, and cannot.now be questioned by any of the Municipalities.
In their answer to the supplemental petition, the defendants generally deny the allegations therein contained, and further answering aver that the act referred to in the supplemental petition, although called a donation, was in reality [234] an act of compromise, entered into between- the riparian proprietors and' the corporation of New Orleans, for the purpose of settling the conflicting claims to the batture or alluvion, set' up by the parties respectively. That said compromise is bindingonthe-praintifiVhavingbeen frequently recognized and ratified By her since its date; that the piece of ground claimed in the petition is a public place, over which the respondents'have the right of administration.
On these'issues, the parties Went to trial. There was a judgment in favor of the plaintiff on the question of title, and the defendants took a devolutive appeal. A rule was-subsequently taken by the plaintiff Upon the' defendants to show cause why she should not immediately be put in possession of her portion of the batture, which according to the plan made by the surveyor of the Municipality, and the unanimous opinion of the City Council as expressed in one of their ordinances, is no longer wanted for public purposes. This rule was discharged, and the plaintiff appealed'.
A great portion of the argument of the counsel on both sides, has been directed to the investigation of the nature of the'contract of the 20th of September, 1820; the plaintiff insisting that it was in fact, what it purports to be, a pure and simple donation inter vivos, null for want of form as well as for want of authority in Barlhüemy Lafon, and not susseptible of ratification ; the defendants maintaining that it was a final compromise of all the difficulties that had existed till'then in relation to the batture, which the executor may have been judicially authorized to make Before the' acceptance of the succession by the heirs, and which, if he was not so authorized, the plaintiff 'has since voluntarily executed, and"otherwise-ratified in various Ways.
It is necessary to a proper understanding of this act to state' the principal clauses which it contains. The parties of the first part, as actual possessors of the batture, to favor the public, as they allege, in the use of the banks of the river adjoining the batture, and to facililate the communication of the streets which should extend to it, make an irrevocable donation inter vivos to the city of New Orleans, represented by the Mayor, acting on that occasion under the special authorization given to him by the City Council, a copy of which was annexed to the act. The donation includes : 1st. All that portion of the alluvion outside of the line of the new levée previously established. 2d. The new levée itself, and the soil'upon which it was- erected, in the condition in which the whole would be found after the levée had been repaired, augmented, and' a palisade made in front of it by the donors. 3d. The soil necessary for the prolongation of all the streets of the faubourg to the new levée. 4th. So much soil as was necessary to give to Tchoupitoulas street, a Breadth of sixty feet through faubourg' St. Mary.
This donation was made on the express condition, without which it would not have taken place, that all. the lands i't conveys shall remain ultra commereium; that no buildings shall ever be erected upon them; and that they shall not be applied to any other public uses but those to which they are naturally destined. The act goes on to say, that, in consideration of the donation, and of the advantages which may result therefrom, to all parties, the donors farther bind themselves towards the city: 1st. To repair and increase the levée mentioned in the act, so as to make if sixty feet at top-, and' to place palisades in front of it. 2d. To make and fill up at their own expense,all the streets between Tchoupitoulas street and the new levée, and to make .platforms at the ends next to the river. 3d. To destroy at their own expense all the buildings then existing on [235] the 'batture, and to remove the materials within a delay of thirty days. 4th. To construct at their own expense the buildings necessary for a public market to be erected in .faubourg St. Mary, for .the erection of «which they .tax themselves $10 for «every front foot of land they possess >in the -rear «of the new levée, and give their motes secured by mortgage to the corporation for their respective shares. The corporation-receive the notes, and, in «case the amount be more than sufficient to -erect «the St. Mary’s market, -they bind themselves to apply the residue in the-ereotion of another market house in faubourg Marigny. The front of the Jots belonging to the legal representatives .of Pierre Pelabigarre, is stated to be ninety-four feet, and Barihélemy Lafon, as «executor, gives his notes at one and two years for $940, according to the terms of the.contract.
Nemo facile presumitur donare, is a sound rule in the interpretation of contracts, and .before parties, who had been.at open«war.with the«city authorilies.for fifteen years, can.be considered.as having gratuiousLy come forward, tnade«aidonationto it from pure considerations-of love and .affection, and imposed heavy charges «and contributions upon themselves as a consideration for their liberality, courts of -justice will pause and try -to discover-whether this was the real cause; for a contract is not the less valid, though the cause be not expressed, and if the cause expressed should be one that does not exist, yet the contract cannot be invalidated, if the party can-show the existence-of-a true and-sufficient consideration. -C. C. 1888, 1894. It is the necessary consequence of those provisions of -law, that the true cause may be shown by any legal evidence, oral or written, «and .that.the evideneeadduced for that purpose never can.be.considered as contradicting the act.
The judge of .the first instance held -the real cause to be a concession of right to power, an abandonment of a part of -the property by the donors, for the purpose of being permitted to enjoy the remainder. The plaintiff’s counsel have relieved the legislation of those times from that imputation. They have shown that, in 1813, the -legislature had provided-the mode in which levées might be advanced, when the alluvions in front -of them became susceptible of private ownership, and «they have referred us-to decisions of the late Supreme Court made under that-law, in which it was held that the-discretion, -vested in police juries and city councils to determine when levées should be advanced, was a sound discretion, into the exercise of which-courts of justice might enquire. In the case of Henderson el al. v. The Mayor of New Orleans et al., in which a similar question was presented, the court held that, if the jury-decided that the levée should be advanced, the city authorities-could not refuse the permission, because the owner would not.surrender -part of the property to the public, or burthen it with servitudes to which other lands are not subjeot. 5 La, 420. Taking this to have been the-law in 1820, the donors might at any time have invoked its protection; and the powers of the city government-could not -have been arbitrarily exercised .to their detriment. We must, therefore, ascertain whether, as alleged by the defendants’ counsel, there -were at the time dangers of eviction, troubles, or disturbances, from which .the contract of 1820 relieved the parties in possession.
It is said, on behalf of .the plaintiff, that there was not, because the judgment in Gravier’s case formed res judicata between the plaintiff and the defendants. One of the .essential requisites .to maintain the exception rei judicata is, utsit cadem causa pelendi. The city, in Gravier’s case, did not set up title to the batture, but claimed it exclusively as a locuspublicus, under a dedication by Gravier, and the use of the public ever since the establishment of[236] faubourg St. Mary. The plea nbw made presupposes the issue to be the same *n ^1'13 su’*” ^ waives, therefore, the exception in .the brief, that the defendants, having set .up title in themselves, are bound by that plea, and cannot change the nature ,of their defence. In .conformity with the views expressed in the case of Millaudon v. The First Municipality of New Orleans, 1 Annual Rep. 215, we would not., in .any ,cas.e of -which we have the contro], be disposed to hold the .corporators responsible for the errors .of their agents in pleading.or in defending suits; but here the very gr.o.und assumed by the plaintiff waives an informality which might as well perhaps not have been alleged, as the plaintiff herself'had .committed .errors in her pleadings which she rectified in the supplemental petition.
Another essential condition to maintain .the exception .of the thing adjudged is that, the parties b.e .the same in both suits. Successors to, or ayans cause of, the parties in the original suit ar.e .considered in Jaw as having been parties themselves, provided always that they have acquired .their title after the institution of the suit in which the original judgment was rendered. If the title was acquired .before, .the exception rei judicata will not.avail. Po.thier, Oblig. nos. 9.01-9.04.
The vendor does not represent ,the purchaser in relation to the real rights alienated. He has diy.ested himself of .them, and cannot dispose of them, nor compromit them, in .any manner to the prejudice of the purchaser, by whom, or against whom, .all actions affecting them must be brought. The purchaser is not bound to intervene, although he may have knowledge of the proceedings. Merlin, .Quest, de Droit, verbo .Chose Jugée,§ 2.
Gravier in this .case had parted with his title to Felabigarre three years before .the institution of the suit, and no privity having been shown between them in the suit, Gravier was without capacity to stand in judgment. The concealment of the title of Felabigarre was ,a fraud which could neither benefit nor injure him. 'Moreover, only a small portion of the land which Gravier had sold .belonged to him; the remainder was afterwards adjudged by a decree .of court to the foreign heirs of Bertram Gravier., from whom it was purchased by Mr. Livingston, in 1,819. • Nobody will pretend that the judgment formed the thing adjudged in fav.or of those heirs; and accordingly we find that, after the judgment had been final ten yeai;s, they sold without warranty of any kind to Mr. Livingston, who .acknowledged in the deed .that he was fully aware of the dangers of eviction which existed, .and that he purchased at his peril and risk. He had the management of the interests of Felabigarre, and seems to have treated them precisely as his own. He was fully aware that, in relation to .both, .the question .of .title remained open; and if, after the organization of the State government, .a new suit had been instituted to test its validity, we are not prepared to say that, under the principles regulating dedications to public use .as they .are now understood, the evidence in Gravier's .case would not have authorized .a judgment in favor of the public.
Again, the main question of fact upon which the case .of Gmvicr turned was that, at the time of the establishment of faubourg S.t. Mary a batture .susceptible of private .ownership existed .on the whole line .of the levee. Now, in 1819, just before Mr. Livingston’s purchase, it was held by the late Supreme Court in the case of Morgan v. Livings,ton, that .there was no bntture susceptible of private ownership at .that time in front of .a considerable portion of the Jevée. Whoever peruses the testimony in that .case will find it difficult not to .give it faith. If that testimony was '.true., that in Gravier’s .case was false; and [237] had the judgment been rendered between proper parties, the city had tweny years, under the laws then in force, to set it aside on that ground, by an action of nullity. Part. 3, tit. 26, laws 1, 2.
These were the dangers of eviction, troubles, and disturbances to which Mr. Livingston had reference in his purchase from the heirs of Bertrand Gravier, and which induced him to acknowledge, in 1819, that his title was defective, and to cancel on that ground the sale of two batture lots made by him the year previous to Vincent Nolté. -He must have been deeply impressed with the necessity of making such a transaction in relation to the whole matter, as the city would accept and the legislature ratify ; for, wherever the public is concerned, the State is not without interest. In order to succeed, it was necessary not to expose the weakness of the title; hence the great anxiety of Mr. Livingston to abandon to the city all beyond a certain line, provided they would accept it in the form of a donation ; hence all those bland entreaties for peace and good neighborhood which, after years of perseverance, finally accomplished his object. The acceptance by the corporation of a portion of the batture from the possessors, as a gift, virtually acknowledged their title to the remainder, and prevented the law-suits which they feared. It was unquestionably the real cause of the contract, and as the contract itself was such as to satisfy in a great measure the wants and wishes of the city, it became the apparent interest of all parties to have it recognized by the legislature. It was represented to that branch of the government as a final compromise, ratified by them as such, and kept in full force after the division of the city, by an express provision of the act of 1836. This ratification has rendered the title of the possessors to the portion they retained perfect; and the policy of the attempt now made to show that the act was not a compromise, which if successful would do away with it and reinstate the public in its original rights to the whole batture, is extremely doubtful. Prescription does not run against public places and things out of commerce.
The contract of 1.820 was a compromise made under the form of an onerous donation, and subject only to the rules applicable to commutative contracts. C. C. 1513. It is no more a real donation than an act would be by which one .of the parties made an irrevocable donation inter vivos of an immovable to the other party, who, in return, made to him a similar donation of the price. It will not be contended that a contract of that kind could be avoided by the subsequent birth of children to the donor, nor on account of the ingratitude of the donee. Compromises may assume any form,and simple obligations to do or to give may be shown, by other evidence, to be the consideration of them. Troplong, Transactions, no. 34.
This compromise was one entire contract, the conditions of which had been prescribed by a resolution of the City Council annexed to it; and all the obliga" tions it imposed ¡on the possessors of the batture were the consideration of the implied recognition of their title to the portion retained. It contained stipulations not unlike those familiar dispositions of property, by which the naked property is given to one and the usufruct to another. No right .of reversion was stipulated under any contingency, and, as long as the compromise stands, the donors cannot resume the title.
The counsel for the plaintiff contend that, admitting the contract of 1820 to he a compromise, it was not signed by the heirs of Lelahigarre, and his executor had no authority to make it. It is not shown that the heirs of Delabigarre Jaad accepted his succession at the time. That succession was then under the [238] exclusive administration of the executor, and he might, ou a proper showing, have been authorized by the court to compromise. Whether he obtained the authorization does not appear. If he did not, the heirs of Lelabigarre alone could take advantage ef the emission, and it was incumbent upon them to have done so when they took the seizin of the succession from the executor. They cannot'be permitted to reeeiye from him all the property whieh the compromise had secured to them, and to claim more afterwards on tire ground that he had no authority to make it.
Within a few weeks of the .date of the act, steps were taken to set apart five batture lots, as the share of the heirs of Lelabigarre ; and the partition between them and Mr. Livingston was completed .on the 8th April, 1822. The plan annexed to the act shows the lines of the levée and the .prolongation of the streets .as fixed by the compromise, and the lots are described by reference to those lines and streets. On the same day the heirs of Lelabigarre sold to Mr. Livingston two of those five lots, and in the sale reference js had to the same plan. Part of the consideration of this sale consists in the sum of $940, the amount of the two promissory notes subscribed by B. Lafon, as executor of Lelabigarre, to the order of Joseph Ronfgnac, mayor of the city of New Orleans, as appears by the act .of the 20th of September, 1820, whieh notes the said Edward Livingston promises and .obligates himself to pay in the discharge of the vendáis; and also of the sum of $839, being the .amountadvanced by John W. Oddie, agent of the vendors, for making the levée contemplated by the compromise.
It is objected that there is no proof of the authority of Oddie to represent the heirs of Lelabigarre in these acts. After twenty years the authority of an agent is presumed, and twenty-three years elapsed .after the execution of the acts before this objection was made. Bedford v. Urquhart, 8 La. 248. Bourguignon v. Boudousquié, 6 Martin N. S. 153.
But it is not necessary to resort to that presumption in this case. The plaintiff divided the three remaining'lots into six, and sold them with reference to the plan under which they had been acquired. The acts of sale state that the property sold was acquired in part by the plaintiff from her sister, and in part by an act of partition between Edward Livingston and the heirs of Lelabigarre, of whom the plaintiff is one, passed before JFTugues Lavergne, late notary public in this city, on the 8th day of April, 1822, the very act in which John W. Oddie appeared as agent of the heirs of Lelabigarre. The plaintilfhas never claimed, and does not claim in this suit, the lots transferred to Mr. Livingston by that act; and she is estopped by her own declaration from questioning the authority of the agent who represented her therein.
It is true, as decided in the case of Rivas’ heirs v. Bernard, 13 La. 159, that where a ratification is not express, facts must be established from which it necessarily results. But viewing, as wo do, the compromise of 1820 as one entire contract, the acts of the plaintiff cannot be accounted for without a ratification of it. She has made the acts of B. Lafon and John W. Oddie her own, by executing voluntarily, more than twenty yearsbefore the institution of this suit, all the contracts they made for her and her sister, and she now stands as if she had herself signed the compromise. If it is not aII binding upon her, no part of it is binding, and she may claim the ground given for the prolongation of the streets and for widening Tchoupitoulas street, as well as the batture.
It is further urged that, admitting the batture to have been dedicated to public use., the defendants are only entitled to that use as'long as it is compatible [239] With the public interest; and that as they have passed a resolution ordering a portion of said batture to be sold,- on the ground that,- the batture from its great width had become useless as a public landing, that it was injurious to the public
welfare, and caused great inconvenienee and expense to commerce, and that the portion ordered to be sold was no longer required for public use, the plaintiff has the right to resume the possession of that portion.
The sovereign alone has the right to change the destination of public places. Under the state of facts presented by the record, the attempt of the defendants to change the destination of the ground was a glaring usurpation of power, from which no legal effects eould result. It is proper to state that this attempt was not persevered in. •
It is therefore deereed that the judgment of the District Court be reversed ; and it is further decreed that the act of compromise of the 20th September, 1820, before Hugues Laver gne, notary, in the pleadings referred to, and whereof a copy is on file in this cause, be maintained, and have its full effect against the plaintiff; and that the petition of the plaintiff be dismissed, with costs in both courts.