LANUSSE vs. MINTURN, 11 La. 256

Bullard, J,, delivered the opinion of the court. The plaintiff seeks to enforce a legal mortgage upon certain real estate, sold by her late husband P. Lanusse, in 1819, and now owned by the defendant. The defence set up in the answer is, first, that the plaintiff, then the wife of Lanusse, intervened in the sale, and formally renounced her tacit or legal mortgage on the premises; and second, the prescription of ten years.

We have not thought it necessary to inquire into the solidity of the first ground of defence, being satisfied that the plea of prescription ought to be sustained. r r A ° The Louisiana Code began to operate here on the 20th May, 1825, and this suit was instituted on the 18th June, 1835. During those ten years, and for some time preceding the promulgation of the code, the plaintiff was capable of proceeding to enforce whatever right she had, having renounced the community.

In a petitory action, . where the defendant holds by a title translative of property and in good faith, after the lapse of ten years, he will hold the proper» ty against a better title by prescription acqui-rendí causa. So, where the title of the plaintiff is barred by prescription ac-quirendi causa, he cannot, d fortiori, enforce a mortgage or real right to the property when the prescription liberandi causa is opposed to him.

If this were a petitory action, and the defendant had'set up prescription acquirendi causa, however valid may have been the title of the plaintiff originally to the property itself, and however superior to that of the defendant, we have no doubt the plea must have prevailed, because the defendant holds under a title translative of property, and in good faith.

How is it when the plaintiff asserts only a real right in the thing aud seeks to have the property sold for her benefit 1 Independently of all positive authority on the subject, it would seem as clear as that the greater includes the less, that if she could not recover the property in a real action, she could not it fortiori, enforce any real right in it, when the prescription liberandi causa, is opposed to her.

But the code contains a positive enactment on this subject. “ This prescription has also the effect of releasing the owner of an estate from every species of real rights, to which the property may have been subject, if the person in possession of the right has not exercised it during the time required by law.” Louisiana Code,

article 3495. 4 Louisiana Reports, 326. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.