Reuben Anderson and Others, Plaintiffs in Error, v. Michael Bock, 15 How. 323

Mr. Justice CAMPBELL delivered the opinion of the court. The plaintiffs commenced a petitory action, as heirs at law of Thomas Anderson, to recover a lot of land in the city of New Orleans, of which they aver he died seised and that the defendant wrongfully detains The defendant denied their claim to the property, and pleaded prescription under a just and valid title, with undisputed possession for upwards of thirty years.

Upon the trial, the plaintiffs produced a conveyance'of the lot by a notarial act from the city of New Orleans to Sticher and Anderson, dated in 1810, upon the consideration of fifteen hundred and eighty dollars. This sum was to remain a charge upon the lot, and the interest upon it, at the rate of six per cent, per annum, was to be paid in quarterly instalments. Upon a failure to pay two of these instalments, the city was authorized to proceed judicially for the recovery of possession, and for the damages arising from a deterioration of the property, and the vendees were to forfeit their title.

The'other stipulations in this conveyance are immaterial to the decision of the case. The defendant relied upon a notarial act from the city of New Orleans, dated in 1816, conveying the .property in the same lot to one Clay, upon a contract of sale, and

an act dated in 1823 from Clay conveying the property to the defendant. In each of these the vendees acknowledge that possession of the lot had been delivered at the date of the deeds. The plaintiffs requested the court to instruct the jury that the city of New Orleans, by the notarial act pf1810, had transferred to Sticher and Anderson the titlq and the. possession of the property, and that neither the title nor the possession, can. be presumed to be afterwards in the city, but that’the city should show that the title and possession' came lawfully into its hands.

This request was refused by the court, and .the jury was instructed that the deeds from the city to Clay of 18.16, and from Clay to. the defendant in 1823, were of themselves evidence of possession in the. defendant and his vendor to support the plea of prescrip- ' tion. ■ The court further instructed the jury that, under the written proofs and law of the case, the plea of prescription must prevail. These instructions were excepted to, and are here assigned as error. The conveyance from the city to Sticher and Anderson, of ' 1810, was upon a resolutory condition.

The contract between the parties was not dissolved of right by the non-fulfilment of the condition, biit the party complaining of the breach might have insisted upon its dissolution, with damages, or upon a specific performance. C. C. 2041, 2042. The dissolution of the contract for the non-fulfilment of the conditions, could not be inferred merely from the fact of a subsequent conveyance by the city of the same .property.

The title of the city to the' lot passed to Sticher and Anderson by the notarial act of 1810, and, to sustain a posterior conveyance of the city, it should'have been shown, 'either that the first contract had been revoked, or that another title had been acquired. The court erred, therefore, in-refusing the instruction requested by the plaintiffs. 2.

To sustain a title by prescription to immovable property, according- to either of the articles of the civil code, referred to in the pleas, the defendant was required to show “ a public, unequivocal, continuous, and uninterrupted possession,” “under the title of owner.” “ The possessor' must have held the property in fact and in right as owner,” “ though a civil possession would suffice, if it had been preceded by the corporeal possession.” C. C. 3466, 3467, 3453; Devall v. Choppin, 15 Lou, 566. The court has been referred to the civil code, '(C.

C. 2455,) to prove that .the claims of the articles of the code we have cited are fulfilled by the public acts produced by the- defendants. This

article is “ that the law considers the' tradition or delivery of immovables as always accompanying the public act. which transfers the property. Every obstacle which the seller after-wards imposes, to prevent the corporeal possession of the buyer, is considered as a trespass.” This

article wds designed to declare, the operation of a-contract for the transfer of property when embodied in a public act,' as between the parties to the act. It establishes, that the .transfer is.' complete by the use of dpt words of conveyance in-such

an act, without the formality of. a.real delivery'; that the power of control and enjoyment, transferred by a grantor in -such-an act, is equivalent to a manual or physical tradition. -/So exactly the equivalent, that an “ interfering obstacle,” interposed by the grantor afterwdrds, may be treated as a trespass — that is, '’ disturbance of the possession of the grantee. This rule from the Louisiana code, corresponding with that of the' code Napoleon, deviates from.the rule of. the'Roman-and feudal law, which exacted' a formal delivery, to .perfect the transfer of the property.

The rule is in complete harmony with the American system of conveyancing, which accomplishes the cession of property, with its incidents of possession ana enjoyment, without a resort to symbolical .acts, or inconvenient ceremonies, by the consent of the owner, legally authenticated. This explanation of the object of the

article of the code, will enable us to define the limits of its operation. A vendor cannot transfer a title, or a possession, which is not vested in him. He cannot, by his conveyance or admissions, affect the claims of persons whose title is adverse to his. It follows, therefore, that the recitals in these acts, that possession had been delivered, and that the vendor was satisfied -therewith, are not evidence c,i that corporeal possession, which is the foundation of a prescriptive right, in a cáse like the present. Tropl. De Vente, § 36, 40; C. C. 2233, 2235; Emmerson v. Fox, 3 La. R. 183; Ellis v.

Prevost, 19 La. 251. 3. As a general rule, the possession necessary to sustain a prescription is founded upon facts, which it is the province of a . jury to ascertain. Ewing v. Burnet, 11 Pet. R. 41; Beverly v. Burke, 9 Geo. R. 440. But the “written proofs,” tipon which the Circuit Court felt authorized to instruct the jury that the plea of prescription must presrail, are not exhibited in the record, and this court cannot, therefore, test the accuracy of -its conclusion.

For the errors in the charge that’we have noticed, the judgment of the Circuit Court must be reversed, and the cause remanded-for further proceedings." , Order. . This cause came on to be heard on the .transcript of the reeofd from the Circuit- Court of the United States, for' the Eastern District of Louisiana, and'was argued by counsel. On consideration whereof, it is now heré ordered and adjudged by .this court, that the judgment of the said.

Circuit' Court in. this cause be, and the same is hereby,’reversed, with costs, and that this cause be, and the same is hereby, remanded to the said Circuit Court, with directions for further proceedings to be had therein, in- conformity to the opinion of this court.