The opinion of the court was delivered by
Watkins, J.
The case presented for our consideration as set forth in the petition, is one of fraudulent simulation, and the charge is that the property was conveyed from plaintiff to her husband through the interposition of a third person, without any price having been paid therefor.
That said transaction was attended with no change of possession, administration or control; and that same is in open and flagrant violation of a prohibitory provision of the law.
The demand of the plaintiff is resisted by the principal defendant, Chambers, Roy & Co., in liquidation, on the ground, that James S. Douglass, acquired the property from J. 33. Guthrie, on the 8th of January, 1881, as appears from an act of sale of that date, duly recorded ; that some years afterward he died possessed of said property, and it was inherited by his heirs, one of whonj. is George Douglass; and that subsequently said defendant obtained a personal judgment-[1457]*1457against the aforesaid heir and caused same to- be recorded, so as to operate as a judicial mortgage, upon all his. real property.
The claim urged by said defendant is, that the effect of the aforesaid registry is to bind the undivided share or interest of the said heir' in said property, irrespective of the simulation charged by the plantiff,because it is a third and innocent party not charged with notice of, and not bound by any secret equities, or latent ambiguities in the-transactions between the plaintiff and her husband.
On these issues a trial was had, and a judgment rendered in favor of the plaintiff and against the defendant, and the latter has appealed therefrom.
The judgment, in terms, decreed the sales from the plaintiff to Guthrie and from Guthrie to James S. Douglass, the husband of plaintiff, to have been simulated and absolutely null and void, ab initio; and recognized the plaintiff as owner and in possession of the-property.
A brief statement of plaintiff’s case is as follows, viz:
That she was the wife and now the widow of James S. Douglass, he having died on the 16th of April, 1890, leaving several children as issue of their marriage — there being seven majors, one of whom is George, and three minors.
She represents, that by a proper judicial decree, bearing date November 17th, 1566, she was adjudged separate in property from her husband, and that the community of acquets and gains theretofore existing between them be dissolved — she being, also, decreed the separate-administration of her paraphernal property.
That on the 13th of April, 1868, she purchased from James II. Gillespie, by notarial act, duly recorded, as her separate and paraphernal property, a tract of land situated in the parish of Tensas, known and designated therein as Lake plantation, and containing -nine hundred and fifty-five (955) acres, together with all buildings and improve-ments thereon.
That she entered into possession thereof, and has ever s,ince continr ued in possession of the whole of said plantation and property.
She represents, that, being desirous of disposing of said property,, she caused an investigation to be made of her title thereto, within the last twelve months, and that it disclosed “an apparent cloud upon her title,” which is-fully recited as follows, viz:
That on the 7th of January, 1881, a petition was presented by [1458]*1458Messrs. Halsey and Newell to the district judge, in which they represented themselves as her attorneys, praying that she be authorized to sell a portion of the Lake plantation, containing about five hundred and thirty (530) acres; and that said judge granted said order accordingly and endorsed same upon the petition.
That on the day following, the 8th of January, 1881, said attorneys prepared a deed from the petitioner to John B. Guthrie, of Tensas parish, for all of said last described land, for the price of eight hundred dollars ($800.00), in cash; and on the same day, same attorneys prepared a deed to the same land from John B. Guthrie to James S. Douglass, petitioner’s husband, and for a like consideration of eight hundred dollars in cash.
That said deeds are in the same handwriting, attested by the same witnesses, and were simultaneously executed — one immediately after .the other.
That the two deeds were filed for record on the same date, January 10th, 1881.
She then alleges that she was never divested of title to said property thereby, nor of the possession or control of same; but that, on the contrary, “she has remained in the possession, control and management of the same to the present day.”
That she neither employed nor authorized said attorneys to apply to the judge for the alleged authorization to sell said property; and that she had neither knowledge or notice of their employment for her.
“That while petitioner signed the pretended deed to said John B. “Guthrie, she did so in error of its contents, by the exercise of “ marital influence, and under the belief and impression that it appertained to some ordinary transaction incidental to her plantation affairs.” ■
She avers, “that she did not receive the said sum of eight hundred dollars ($800.00) from the said J. B. Guthrie .as the price of the said '“property, nor any consideration whatever;” anid she further- avers that said James S. Douglass did not pay the said Guthrie the said “eight hundred dollars, nor any other sum whatever, for the said “property.”
She represents, that the real value of said property at the time of said pretended sale, and at this time-is ,fully eight thousand dollars.
Hence, she represents that the said two pretended sales — the one from petitioner to J. B. Guthrie, and that from J. B. Guthrie to J. S. [1459]*1459Douglass, “are and were absolute nullities, being simulated, and made ■“ for the purpose of transferring the title of her said property to her “ husband, through J. B. Guthrie, as a person interposed.”
“That the transaction was, in fact, a sale from the wife to the “husband not embraced within the exceptions in 0. 0., Art. 2446, re“pugnant and contrary to law, and in contravention of 0. 0., Art. “ 1790.”
She represents that she is desirous of and expects to sell her entire plantation, and that in order to do so, she is obliged to have the afore.said cloud removed from her title.
She represents that Chambers, Roy & Co., in liquidation, is a necessary party to this suit, because of it having caused said judgment ¡against George Douglass for $990.30, to be recorded as a judicial mortgage, upon the theory that he had an undivided interest or share in the .aforesaid plantation, as an heir of his deceased father, James S. Douglass; and further, because said company has instituted, and is now proceeding against petitioner' as third possessor by an hypothecary action for the enforcement of said alleged judicial mortgage on said •supposed interest.
The heirs of James S. Douglass, minors, as well as majors, were made parties defendant, as well as Chambers, Roy & Co., in liquidation, and judgment having gone against them, all have united in one .aiDpeal.
The answer of the heirs is a general denial; that of Chambers, Roy ■ & Co., in liquidation, is, that Janies S.
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The opinion of the court was delivered by
Watkins, J.
The case presented for our consideration as set forth in the petition, is one of fraudulent simulation, and the charge is that the property was conveyed from plaintiff to her husband through the interposition of a third person, without any price having been paid therefor.
That said transaction was attended with no change of possession, administration or control; and that same is in open and flagrant violation of a prohibitory provision of the law.
The demand of the plaintiff is resisted by the principal defendant, Chambers, Roy & Co., in liquidation, on the ground, that James S. Douglass, acquired the property from J. 33. Guthrie, on the 8th of January, 1881, as appears from an act of sale of that date, duly recorded ; that some years afterward he died possessed of said property, and it was inherited by his heirs, one of whonj. is George Douglass; and that subsequently said defendant obtained a personal judgment-[1457]*1457against the aforesaid heir and caused same to- be recorded, so as to operate as a judicial mortgage, upon all his. real property.
The claim urged by said defendant is, that the effect of the aforesaid registry is to bind the undivided share or interest of the said heir' in said property, irrespective of the simulation charged by the plantiff,because it is a third and innocent party not charged with notice of, and not bound by any secret equities, or latent ambiguities in the-transactions between the plaintiff and her husband.
On these issues a trial was had, and a judgment rendered in favor of the plaintiff and against the defendant, and the latter has appealed therefrom.
The judgment, in terms, decreed the sales from the plaintiff to Guthrie and from Guthrie to James S. Douglass, the husband of plaintiff, to have been simulated and absolutely null and void, ab initio; and recognized the plaintiff as owner and in possession of the-property.
A brief statement of plaintiff’s case is as follows, viz:
That she was the wife and now the widow of James S. Douglass, he having died on the 16th of April, 1890, leaving several children as issue of their marriage — there being seven majors, one of whom is George, and three minors.
She represents, that by a proper judicial decree, bearing date November 17th, 1566, she was adjudged separate in property from her husband, and that the community of acquets and gains theretofore existing between them be dissolved — she being, also, decreed the separate-administration of her paraphernal property.
That on the 13th of April, 1868, she purchased from James II. Gillespie, by notarial act, duly recorded, as her separate and paraphernal property, a tract of land situated in the parish of Tensas, known and designated therein as Lake plantation, and containing -nine hundred and fifty-five (955) acres, together with all buildings and improve-ments thereon.
That she entered into possession thereof, and has ever s,ince continr ued in possession of the whole of said plantation and property.
She represents, that, being desirous of disposing of said property,, she caused an investigation to be made of her title thereto, within the last twelve months, and that it disclosed “an apparent cloud upon her title,” which is-fully recited as follows, viz:
That on the 7th of January, 1881, a petition was presented by [1458]*1458Messrs. Halsey and Newell to the district judge, in which they represented themselves as her attorneys, praying that she be authorized to sell a portion of the Lake plantation, containing about five hundred and thirty (530) acres; and that said judge granted said order accordingly and endorsed same upon the petition.
That on the day following, the 8th of January, 1881, said attorneys prepared a deed from the petitioner to John B. Guthrie, of Tensas parish, for all of said last described land, for the price of eight hundred dollars ($800.00), in cash; and on the same day, same attorneys prepared a deed to the same land from John B. Guthrie to James S. Douglass, petitioner’s husband, and for a like consideration of eight hundred dollars in cash.
That said deeds are in the same handwriting, attested by the same witnesses, and were simultaneously executed — one immediately after .the other.
That the two deeds were filed for record on the same date, January 10th, 1881.
She then alleges that she was never divested of title to said property thereby, nor of the possession or control of same; but that, on the contrary, “she has remained in the possession, control and management of the same to the present day.”
That she neither employed nor authorized said attorneys to apply to the judge for the alleged authorization to sell said property; and that she had neither knowledge or notice of their employment for her.
“That while petitioner signed the pretended deed to said John B. “Guthrie, she did so in error of its contents, by the exercise of “ marital influence, and under the belief and impression that it appertained to some ordinary transaction incidental to her plantation affairs.” ■
She avers, “that she did not receive the said sum of eight hundred dollars ($800.00) from the said J. B. Guthrie .as the price of the said '“property, nor any consideration whatever;” anid she further- avers that said James S. Douglass did not pay the said Guthrie the said “eight hundred dollars, nor any other sum whatever, for the said “property.”
She represents, that the real value of said property at the time of said pretended sale, and at this time-is ,fully eight thousand dollars.
Hence, she represents that the said two pretended sales — the one from petitioner to J. B. Guthrie, and that from J. B. Guthrie to J. S. [1459]*1459Douglass, “are and were absolute nullities, being simulated, and made ■“ for the purpose of transferring the title of her said property to her “ husband, through J. B. Guthrie, as a person interposed.”
“That the transaction was, in fact, a sale from the wife to the “husband not embraced within the exceptions in 0. 0., Art. 2446, re“pugnant and contrary to law, and in contravention of 0. 0., Art. “ 1790.”
She represents that she is desirous of and expects to sell her entire plantation, and that in order to do so, she is obliged to have the afore.said cloud removed from her title.
She represents that Chambers, Roy & Co., in liquidation, is a necessary party to this suit, because of it having caused said judgment ¡against George Douglass for $990.30, to be recorded as a judicial mortgage, upon the theory that he had an undivided interest or share in the .aforesaid plantation, as an heir of his deceased father, James S. Douglass; and further, because said company has instituted, and is now proceeding against petitioner' as third possessor by an hypothecary action for the enforcement of said alleged judicial mortgage on said •supposed interest.
The heirs of James S. Douglass, minors, as well as majors, were made parties defendant, as well as Chambers, Roy & Co., in liquidation, and judgment having gone against them, all have united in one .aiDpeal.
The answer of the heirs is a general denial; that of Chambers, Roy ■ & Co., in liquidation, is, that Janies S. Douglass acquired the aforesaid property by the aforesaid deed, and at his death a fee simple title vested in his heirs, George Douglass, amongst the number; and that by the registry of its judgment it acquired a judicial mortgage thereon. The company urges the deed since made by the major heirs as an -estoppel.
It then pleads the prescription of five years against any demand of the plaintiff to annul said title; and alleges the invalidity of the judgment of separation between the plaintiff and her said husband, and denies that plaintiff acquired said property on her own account as paraphernal property.
In this court the déféndánt pleads the additional prescription of one year against any demand to annul the judgment of the court authoriz-ing Mrs. Douglass to sell the property in contest herein.
Necessarily, the pleas of prescription must be first disposed of.
[1460]*1460I.
The plea of prescription of one year can not prevail, as it is not applicable to the case before the court.
The ex parte order of the judge, granting a simple authorization to a married woman to sell her separate property in default of an authorization by the husband, is in no sense a judgment, and there is in the-petition no allegation, and in her prayer no demand for its annulment.
All that is alleged on that score is, that the attorneys by whom the petition was prepared and presented to the judge, were not employed or authorized to represent her.
This plea is untenable.
II.
The defendants’ plea of five years’ prescription is directed against plaintiff’s action as one to annul a sale--James S. Douglass, husband of plaintiff, having died in April, 1891, and her suit having been instituted in the year 1899.
The provision of the law upon which defendants rely is, that an action “for the nullity or recission of contracts,” is prescribed by five years. R. C. C., 3542.
On the other hand, plaintiff’s counsel deny its applicability, because this is essentially a suit to have a simulated sale decreed such, and, therefore, void ah initio, and not in any sense an action to annul a contract.
That this is not a revocatory action, but one en declaration de simulation.
Plaintiff’s counsel cite the case of Brownson vs. Weeks, 47 Ann., 1042, as supporting defendant’s plea of prescription.
It appears from the opinion in that case, that the plaintiff’s attack on defendant’s title was based upon the claim that the note and mortgage which she executed in favor of Mrs. Stouff were null and void, because the debt was not hers, but that of her husband, for whom she had become security, in violation of Revised Civil Code 2398, hut she record disclosed that the defendant, Weeks, was a purchaser in good faith from the plaintiff, at public sale, and he plead the prescription of five years.
In examining and deciding that question the court held, that, the-[1461]*1461sale and mortgage were not absolute nullities, citing the case of Lafitte vs. Delogny, 33 Ann,. 665, and then said:
“If the contract has been executed, silence by thq wife after the husband’s death during the prescriptive period, would be an implied ratification.”
It maintained the plea of prescription under Civil Code, 2221, and Mulford vs. Wimbush, 2 Ann., 443. In the principal case, the plaintiff ■executed a note, and secured same by mortgage upon her separate property, and the object of her suit was to have it declared null, on the ground that it was to secure a debt of her husband.
This mortgage note was executed in favor of Mrs. Stouff, and she .transferred it to Mrs. Brownson, who foreclosed the mortgage and purchased the property, and conveyed same to the defendant, Weeks.
The court below sustained the plea of five years’ prescription, and •our opinion affirmed its judgment, on the ground that such contract •was not an absolute nullity.-
. It is sufficient to say that the case of Rouyer vs. Carroll, 47 Ann., 763, cited by counsel for defendant, does not apply to the prescription urged herein, as it related to the “Informalities connected with, or •growing out of any public sale,” which are prescribed against by five years under Revised Civil Code, 3543.
• In our opinion those authorities do not support the defendants’ plea, .and it is, therefore, overruled.