LAND, J.
This is an action in jactitation converted into a petitory action by defendant admitting the slander of the title asserted by plaintiffs and setting up adverse claim to a two-thirds interest in the property in dispute, which is described as lot No. 4 in the Fourth district of the city of New Orleans in the square bounded by Dryades, South Rampart, First, and Second streets.
Plaintiffs, as defendants in the petitory action, called their vendor, Rudolph Langermann, in warranty, and Langermann called in warranty his vendor, August Rudolph Langermann, defendant herein and plaintiff in the petitory action, to defend the title from August Rudolph Langermann to him to a third interest in said property, as well as to “all and singular the hereditary rights, active and passive, without any exception or reservation, which belong to the vendor in and to the succession of his mother, Georgiana Rachel Lozes, wife of Rudolph Langermann, who died testate on the 4th inst., and of whom this vendor is the sole and forced heir for one-third and the purchaser the universal legatee of two-thirds of her succession.”
Mrs. Georgiana Rachel Lozes, the first wife of Rudolph Langermann, died in the city of New Orleans August 4, 1907. By authentic act of date August 22, 1907, August Rudolph Langermann conveyed to his father, Rudolph Langermann, a third interest in said property and the rights above described in and to the succession of his mother. This sale was made with full warranty of title and for a cash consideration of $1,745.38.
On February 21, 1910, Rudolph Langermann sold the same property to the Commonwealth Building & Loan Association, afterwards changed in name to the Prudential Savings & Homestead Society by the amendment of its charter, with full warranty of title and for the cash price of $1,800. This act of sale is notarial in form and was duly registered in the conveyance office of the city of New Orleans February 24, 1910.
His claim to the ownership of a two-thirds interest in this property, set up as a reconventional demand in his answer to the call in warranty, rests solely upon the contention that his father, Rudolph Langermann, married a second time in January, 1915, ' and that, by virtue of said second marriage, he, as the child of the preceding marriage, became owner of a two-thirds interest in said property, because this interest had been bequeathed to Rudolph Langermann, his father, by the deceased mother of claimant, who denied that the act of sale from him to Rudolph Langermann of date August 22, 1907, included among “all the hereditary rights, active and passive,” described therein, the particular right conferred upon him to claim the two-thirds interest in the ownership of the property in dispute, under article 1753 of the Civil Oode, now repealed by Act 238 of 1918.
On the other hand, plaintiffs, as the vendee of Rudolph Langermann, assert that said right was embraced within the sale of date August 22, 1907, under the description of “all hereditary passive rights” in and to the succession of his mother.
To this reconventional demand of defendant for a two-thirds interest in said property and for the rents and revenues of same, the plaintiffs on November 4, 1921, filed pleas of estoppel by deed and by warranty; having previously presented on November 3, 1921, a plea of prescription of 10 years, averring that plaintiffs and their authors in title have been in the physical possession of said property, which is improved, under just title, [79]*79translative of property, for more than 10 years, and that the rights of said August Langermann, if any, are barred by said prescription. This plea of prescription, as well as the pleas of estoppel by deed and by warranty, were overruled by the lower court There was judgment as in case of nonsuit in the call in warranty of plaintiffs against Rudolph Langermann, with full reservation to them to institute proper proceedings to recover the amount due. The call in warranty of Rudolph Langermann against August Rudolph Langermann was rejected, and it was held that the property in question must pass to defendant free of any mortgages or alienations by Rudolph Langermann.
We are of the opinion that the plea of prescription is good and should have been sustained for the following reasons:
The plea of proscription in this case is based upon the authentic act of sale, duly recorded February 24, 1910, from Rudolph Langermann to the Commonwealth Building & Loan Association of the property in controversy.
At the date of this sale Rudolph Langermann was a widower, and it is not disputed by August Rudolph Langermann that his father then owned a two-thirds interest in this property and had then acquired the remaining one-third interest in same by virtue of the sale of date August 22, 1907.
Rudolph Langermann was . in the actual possession of this property as owner from August 22, 1907, down to the date of the sale to plaintiffs, February 21, 1910. The public records disclosed a title to him with no patent defect upon its face. He had the exclusive ownership of and the exclusive dominion over the whole of this property, and the exclusive right to use and enjoy the same, for his own benefit.
Rudolph Langermann had a legal and transferrable title of ownership of record, and the act of sale of date February 21, 1910, from him to plaintiffs, constitutes unquestionably a just title, as said act, authentic in form, evidences an absolute and unconditional sale to plaintiffs with full warranty of title, and for a valuable consideration.
Plaintiffs, therefore, acquired this property in good faith and by a just title February 21, 1910. R. C. C. arts. 3478, 3479, 3481, 3483, 3484, 3485.
After the sale of this property by Rudolph Laftgermann to plaintiffs February 21, 1910, they erected a brick store upon it at a cost of $4,850, and on December 30, 1910, resold said property to Rudolph Langermann for a consideration of $6,500; plaintiffs retaining a vendor’s lien and special mortgage to secure the payment of the promissory note of Rudolph Langermann, the purchaser, for that amount. In addition to the usual stipulations for payments in sales of this character, the pledge of Langermann’s stock as additional security, nonalienation clause, provision for the issuance of executory process, etc., the act evidences a transfer of title to Rudolph Langermann of this lot and the improvements thereon, declaring:
“The purchaser to have and to hold, the said property for himself, his heirs and assigns forever.”
The warranty clause, as is usual in such cases, is only against the demands of all persons claiming the property through the association.
The lower court held that the sale of this property by Langermann to plaintiffs and the resale by them to him did not constitute actual sales, but that the two transactions amounted to only a mortgage. In the opinion of the lower court, the sale by Rudolph Langermann to plaintiffs of date February 21, 1910, did not constitute a sufficient basis for the prescription of 10 years, as said sale was not deemed sufficient to transfer the property to plaintiffs.
[81]*81In this view of the trial judge we cannot concur, as the law on the subject is expressly to the contrary.
It is provided in section 9 of Act 120 of 1902, a building and loan and homestead act:
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LAND, J.
This is an action in jactitation converted into a petitory action by defendant admitting the slander of the title asserted by plaintiffs and setting up adverse claim to a two-thirds interest in the property in dispute, which is described as lot No. 4 in the Fourth district of the city of New Orleans in the square bounded by Dryades, South Rampart, First, and Second streets.
Plaintiffs, as defendants in the petitory action, called their vendor, Rudolph Langermann, in warranty, and Langermann called in warranty his vendor, August Rudolph Langermann, defendant herein and plaintiff in the petitory action, to defend the title from August Rudolph Langermann to him to a third interest in said property, as well as to “all and singular the hereditary rights, active and passive, without any exception or reservation, which belong to the vendor in and to the succession of his mother, Georgiana Rachel Lozes, wife of Rudolph Langermann, who died testate on the 4th inst., and of whom this vendor is the sole and forced heir for one-third and the purchaser the universal legatee of two-thirds of her succession.”
Mrs. Georgiana Rachel Lozes, the first wife of Rudolph Langermann, died in the city of New Orleans August 4, 1907. By authentic act of date August 22, 1907, August Rudolph Langermann conveyed to his father, Rudolph Langermann, a third interest in said property and the rights above described in and to the succession of his mother. This sale was made with full warranty of title and for a cash consideration of $1,745.38.
On February 21, 1910, Rudolph Langermann sold the same property to the Commonwealth Building & Loan Association, afterwards changed in name to the Prudential Savings & Homestead Society by the amendment of its charter, with full warranty of title and for the cash price of $1,800. This act of sale is notarial in form and was duly registered in the conveyance office of the city of New Orleans February 24, 1910.
His claim to the ownership of a two-thirds interest in this property, set up as a reconventional demand in his answer to the call in warranty, rests solely upon the contention that his father, Rudolph Langermann, married a second time in January, 1915, ' and that, by virtue of said second marriage, he, as the child of the preceding marriage, became owner of a two-thirds interest in said property, because this interest had been bequeathed to Rudolph Langermann, his father, by the deceased mother of claimant, who denied that the act of sale from him to Rudolph Langermann of date August 22, 1907, included among “all the hereditary rights, active and passive,” described therein, the particular right conferred upon him to claim the two-thirds interest in the ownership of the property in dispute, under article 1753 of the Civil Oode, now repealed by Act 238 of 1918.
On the other hand, plaintiffs, as the vendee of Rudolph Langermann, assert that said right was embraced within the sale of date August 22, 1907, under the description of “all hereditary passive rights” in and to the succession of his mother.
To this reconventional demand of defendant for a two-thirds interest in said property and for the rents and revenues of same, the plaintiffs on November 4, 1921, filed pleas of estoppel by deed and by warranty; having previously presented on November 3, 1921, a plea of prescription of 10 years, averring that plaintiffs and their authors in title have been in the physical possession of said property, which is improved, under just title, [79]*79translative of property, for more than 10 years, and that the rights of said August Langermann, if any, are barred by said prescription. This plea of prescription, as well as the pleas of estoppel by deed and by warranty, were overruled by the lower court There was judgment as in case of nonsuit in the call in warranty of plaintiffs against Rudolph Langermann, with full reservation to them to institute proper proceedings to recover the amount due. The call in warranty of Rudolph Langermann against August Rudolph Langermann was rejected, and it was held that the property in question must pass to defendant free of any mortgages or alienations by Rudolph Langermann.
We are of the opinion that the plea of prescription is good and should have been sustained for the following reasons:
The plea of proscription in this case is based upon the authentic act of sale, duly recorded February 24, 1910, from Rudolph Langermann to the Commonwealth Building & Loan Association of the property in controversy.
At the date of this sale Rudolph Langermann was a widower, and it is not disputed by August Rudolph Langermann that his father then owned a two-thirds interest in this property and had then acquired the remaining one-third interest in same by virtue of the sale of date August 22, 1907.
Rudolph Langermann was . in the actual possession of this property as owner from August 22, 1907, down to the date of the sale to plaintiffs, February 21, 1910. The public records disclosed a title to him with no patent defect upon its face. He had the exclusive ownership of and the exclusive dominion over the whole of this property, and the exclusive right to use and enjoy the same, for his own benefit.
Rudolph Langermann had a legal and transferrable title of ownership of record, and the act of sale of date February 21, 1910, from him to plaintiffs, constitutes unquestionably a just title, as said act, authentic in form, evidences an absolute and unconditional sale to plaintiffs with full warranty of title, and for a valuable consideration.
Plaintiffs, therefore, acquired this property in good faith and by a just title February 21, 1910. R. C. C. arts. 3478, 3479, 3481, 3483, 3484, 3485.
After the sale of this property by Rudolph Laftgermann to plaintiffs February 21, 1910, they erected a brick store upon it at a cost of $4,850, and on December 30, 1910, resold said property to Rudolph Langermann for a consideration of $6,500; plaintiffs retaining a vendor’s lien and special mortgage to secure the payment of the promissory note of Rudolph Langermann, the purchaser, for that amount. In addition to the usual stipulations for payments in sales of this character, the pledge of Langermann’s stock as additional security, nonalienation clause, provision for the issuance of executory process, etc., the act evidences a transfer of title to Rudolph Langermann of this lot and the improvements thereon, declaring:
“The purchaser to have and to hold, the said property for himself, his heirs and assigns forever.”
The warranty clause, as is usual in such cases, is only against the demands of all persons claiming the property through the association.
The lower court held that the sale of this property by Langermann to plaintiffs and the resale by them to him did not constitute actual sales, but that the two transactions amounted to only a mortgage. In the opinion of the lower court, the sale by Rudolph Langermann to plaintiffs of date February 21, 1910, did not constitute a sufficient basis for the prescription of 10 years, as said sale was not deemed sufficient to transfer the property to plaintiffs.
[81]*81In this view of the trial judge we cannot concur, as the law on the subject is expressly to the contrary.
It is provided in section 9 of Act 120 of 1902, a building and loan and homestead act:
“That such associations are authorized and empowered to contract and agree with any person to acquire or purchase from such person any property, and afterward to sell or dispose of the same property to a member even though said agreement be made at one and the same time, and such contract and agreement shall not be considered or dealt with as a loan, but as a purchase or acquisition by the association, and then as a sale by the association to such member, and such association, to secure payment of the amount due by such member, shall have all tne rights, privileges and securities which are now accorded by the law to the vendor of the property.” (Italics ours.)
Similar provisions appear in Act 115 of 1888 and in Act 280 of 1916;
In the case of Holloman v. Alexandria & Pineville Building & Loan Association, 137 La. 970, 69 South. 764, we said:
“The defendant sued out executory process on a note for $2,700 signed by Mrs. Mary E. Holloman, with the authorization of her husband, and secured by special mortgage and vendor’s privilege on a certain improved lot situated in the city of Alexandria. The transaction between the parties was in the form of a sale by Mrs. Holloman of the lot to the defendant association, and a resale of the same property by the association to Mrs. Holloman for the price of $3,000, represented, in part, by her note for $2,700 bearing interest at rate of 6 per cent, per annum, payable monthly, the whole in accordance with the provisions of the charter and by-laws of the defendant corporation.”
The plaintiff Mrs. Holloman enjoined the execution of the writ of seizure and sale in that ease on the ground that the application to the defendant association was for a loan to pay the debts of her husband, as said association well knew, and that the two acts of sale were merely simulated sales, or, at least, a disguised mortgage, made to subject the property to the payment of her husband’s debts. The court said, in disposing of this contention:
“The plaintiff became a shareholder of the defendant corporation, and the transaction between the parties was not a mortgage, but a purchase and resale, under the provisions of Act No. 120 of 1902, relative to building and loan and homestead associations.”
The act of sale from Langermann to plaintiffs of date February 21, 1910, was therefore a purchase by them and a sufficient ba-, sis for the plea of prescription of 10 years.
Plaintiffs, under their deed of date February 21, 1910, took possession and erected a brick store on this property at a cost of $4,-850, and resold the same with the improvements to Rudolph Langermann on December 30, 1910.
Article 3482 of the Civil Code provides that—
“It is sufficient if the possession has commenced in good faith; and if the possession should afterwards be held in bad faith, that shall not prevent the prescription.” C. O. art. 503.
Langermann remained in the actual possession of this property from December 30, 1910, as owner of the whole property, until June or July, after his second marriage in January,. 1915, when he moved away, but continued to rent it out at $55 per month, until he resold the property to plaintiffs on May 26, 1919, from which date the plaintiffs have been in possession of said property, renting it out at $55 per month and paying insurance and taxes. The present suit was filed June 8, 1920, and August Rudolph Langermann, defendant herein, filed his' answer November 16, 1920, claiming to be the owner of -a two-thirds interest in said property, while the act of sale upon which plaintiffs rely as the basis of prescription is of date February 21, 1910.
While 'it is true that the dation en paiement made by Rudolph Langermann to plaintiffs on May 26, 1919, states that he married [83]*83the second time in January, 1915, and that his second wife was still alive and residing with him; yet under article 3482 of the Civil Code, even if the possession of plaintiffs from May 26, 1919, be held as in bad faith, yet plaintiffs’ possession having commenced in good faith is sufficient to sustain the prescription of 10 years, as plaintiffs are entitled to tack on to their possession that of their author, Rudolph Langermann, a possessor in good faith. Mala fides superveniens non nocet. Barrow v. Wilson, 38 La. Ann. 209; Leduf v. Bailly, 3 La. Ann. 8; McGowan v. Laughlan, 12 La. Ann. 242; R. C. O. art. 3493.
It is true that the rights of August Rudolph Langermann, plaintiff in petitory action, and defendant herein, came into being in January 1915, when his father married the second time. It is also true that the prescriptive period was running during this time; yet he remained quiet and inactive for more than five years after the accrual of his alleged rights. It was only when he was forced to defend this suit brought by plaintiffs that he asserted for the first time, and, too late, any adverse claim to the property in controversy.
The plea of prescription of 10 years is therefore maintained.
For the reasons assigned, the judgment appealed from is annulled, avoided, and reversed, and it is now ordered, adjudged, and decreed that the reconventional demand of defendant August Rudolph Langermann, for a two-thirds interest in the property in controversy and for rents and revenues from same, be and the same is hereby rejected and dismissed. It is further ordered, adjudged, and decreed that there be judgment in favor of the plaintiffs liquidators of the Prudential Savings & Homestead Society maintaining the plea of prescription of 10 years acquirendi causa and decreeing the said liquidators to be the true and lawful owners of the property described in their per tition as “a certain lot of ground, together with the buildings and improvements thereon, and all rights, ways, privileges, servitudes and advantages thereunto belonging, or in any wise appertaining, situate in the Fourth district in the city of New Orleans, in square bounded by Dryades, South Rampart, First and Second streets, described by the No. 4, on a certain plan of E. Eisenstream, surveyor, dated May 6, 1868, a copy of which is annexed to an act passed before W. J. Oastel, notary public, on August 31, 1868, ■which lot measures thirty (30) feet front on Dryades street, by one-hundred and fifteen (115) feet, six (6) inches, between equal and parallel lines,” being the same property which the said society acquired from Rudolph Langermann on May 26, 1919, by act of sale passed before W. Morgan Gurley, notary public, registered in Conveyance Book No. 308, p. 59. The defendant. August Rudolph Langermann to pay all costs.