A reconsideration of this case satisfies us that the provision in the act of conveyance herein, to the effect that the property donated should be used exclusively for educational purposes, and that the school to be maintained on it should be always under the direction and control of the Jesuit Fathers, imposes conditions, charges, and burdens upon the donee. The more serious question, however, in our view, is: Are the conditions, charges, and burdens such as to make the donation, in reality, an onerous one within the contemplation of the Civil Code?
It was strenuously urged on the application for a rehearing that the conditions and charges mentioned are not such as to make the donation onerous, in that they did not and could not inure peculiarly to the benefit of the donor as the head and master of the community of acquets and gains that existed between him and his wife, and, as that community received nothing in return for the donation, that the donation cannot be considered as onerous but merely as gratuitous, within the contemplation of the Code. This position, taken by plaintiffs on the application for a rehearing, caused doubts to arise in the minds of at least a majority of us, and a rehearing was therefore granted. A reconsideration of the case, however, satisfies us that the charge or burden, to make the donation an onerous one, need not be one in favor of the donor, but it may be one in favor of a third person, or even of the public or the community at large. We think this follows from the following articles of the Civil Code, to wit;
"Article 1774. Any thing given or promised as a consideration for the engagement or gift, any service, interest or condition, imposed on what is given or promised, although unequal to it in value, makes a contract onerous in its nature. * * *
"Art. 1890. A person may also, in his own name, makesome advantage for a third person *Page 883 the condition or consideration of a commutative contract, or onerous donation; and if such third person consents to avail himself of the advantage stipulated in his favor, the contract cannot be revoked." (Italics ours.)
Hence we think it follows that it is not necessary that the charge imposed be in favor of the donor, but may be one in favor of a third person, whether in favor of a single individual, a class of persons, or the general public. Where the charge or burden imposed is in favor of a large class of individuals or of the public, the presumption is that such class or the public accepts the advantage. In this instance, the property has been used for school purposes, in accordance with the terms of the donation, for a number of years.
For the reasons assigned, it is ordered that our original opinion and decree herein be reinstated and made the judgment of this court.
ROGERS, J., recused.