delivered the opinion of the court.
This is a petitiory action. In the petition, the plaintiff states his title to be derived from Wesley Trahan and Delia Trahan, who sold to him on the 19th June, 1812, and he further states, that he took possession at the date of the sale, and kept it up to the year 1817 : that at that time, he was interrupted in the enjoyment of the premises, and has been so ever since: and that, at this moment, the land is in possession of McMannus and Sandiford, the defendants. Restitution of the property, and damages for its detention, are prayed.
Sandiford answered, by disclaiming title, and stating that he was the overseer of McMannus.
Amendments are not matters of course, and cannot be made without leave of the court or conseni of the party — if they cannot be nottceo. If it appear from the pleadings or evidence, that undnf the^arae*™ be permitted toaf lack it.*213McMannus pleaded the general issue — possession of more than twelve months by virtue of a bona fide title — fraud in the conveyance under which the plaintiff holds — want of title in the persons who made it — and, further,
That the land he occupies made a part of a larger tract, granted to one Zadock Brashiers: that in November, 1816, a final judgment wasrendered against Brashears and Wesley Trahan, under whom an execution issued and the premises in dispute were seized and sold, and that they were bought by William Kirkland, whose title is now vested in the defendant.
The plaintiff afterwards attempted to amend his petition, and it appears that he made a motion in court to obtain permission to do so.
No order was taken on this motion, nor does the amended petition appear to have been ever filed with the clerk. How the document which is entitled such, got into the record, we do not know, but it cannot be considered as a part of the pleadings. Amendments are not a matter of course. The leave of the court must be obtained, before they can be filed — and without that leave or the consent of the adversary, they make no part of the proceedings in the cause, and cannot be noticed here.
But the admission or rejection of this amendment, does not materially affect the rights of the parties. It makes a part of the defence, that Wesley Trahan, who sold to the petitioner, had no right in the soil as derived from the United States. To this it is answered, that the record establishes the fact, of both plaintiff and defendant claiming under the same person, and that the latter cannot be permitted to dispute his own title. The correctness of this argument, in its application to the case before us, has been resisted, on the ground, that the pleadings do not shew the parties claim under the same persons. In our judgment, it is immaterial whether the pleadings shew the fact or not, provided the *214evidence does. It certainly would have been more regular .... , . for the petitioner to set out the different conveyances from the grantee of the land down to those under whom he held, though we are not prepared to say it was indispensable. irregularity, if it was one, was cured by the intro-ductioh of evidence without any opposition being made, on ^ ground of variance from the allegations in the petition, We conclude, therefore, the judge below did not .err in deciding that the right of Brashears, under whom both parties claim, could not be a subject of inquiry in this suit. The facts of the plaintiff claiming under Trahan, who claims under Brashears, and that the defendant claims under a conveyance of the joint right of Trahan and Brashears, merely shew, that the parties reach the same source, through different channels.
A creditor at Whose suit the property is sold, cannot treat the nullity'™!? the a-^of hisIlgh t™ ,ie to bring aside,*214\ The case appears to have been greatly litigated in the court below, and no less than fourteen bills oí exceptions were taken on the trial. Our view of the case renders it unnecessary to express an opinion on them; for admitting-'thjjdefendant was correct in those he took, in relation to the attempts to establish that the deed to the plaintiff' was a ;■ v jjublie, act, still we think the plaintiff must recover. He claims úñcler a deed from Trahan and wife. The defendant »,s<ttef up: title under a sheriff's sale, subsequently made in virtue of a judgment against Brashears and Trahan. The first is’attacked as fraudulent; and a great deal of the difficulty which attended the investigation in the inferior court, arose from an attempt to sustain that allegation. We think there is full and satisfactory proof on record, free from all technical objections, that the act under sous seing privé, was made at the time it purports, and that the possession under it was such as gave notice to the world. Under these circumstances, it would be doing worse than a vain thing to remand the cause; it would be accumulating costs unnecessarily . on the defendant. The creditor at whose suit the property *215was sold, was not authorised to treat that conveyance as a nullity, and seize and sell the property. If the alienation to the plaintiff was in fraud of his rights, he should have brought an action to set it aside.
A donation un-der the form of an onerous contract is not voidThere are, however, one or two bills of exceptions which 1 it is proper to notice. -
The defendant requested the judge to charge the jury, that if they believed the deed from Brashears to Trahan and wife, was a .disguised donation, the same was a nullity unless passed by authentic act, and accepted in precise terms by the donees. This charge the judge refused to make, and an exception was taken to his refusal.
In our opinion he did not err. The opinion called for, embraced the question, whether a donation under the form of an onerous contract, was null and void. This our code has not said. It does not declare that all donations shall be ■ made by public act, and accepted in precise terms under peine de nullite. It says, all acts containing donations, shall be null and void, unless they pursue the form indica instrument which expresses a sale for value rq tains no donation. This article of our Code is%a£enfrom. the 931st of the Napoleon, and corresponds witj again is verbatim a copy of the ordonnance of IT lation to the latter, we have the interpretation ofvjMTj Chancellor D’Agusseau, that it did not apply to instx? which had the form of ah onerous contract. That interpretation, though adopted at first with some .hesitation in reference to the Napoleon Code, has finally been received and is now the settled jurisprudence of France. The act, it is true, may be attacked if it be in fraud of creditors; or it may be reduced, if more than the disposable portion is given; but it is not void, because there is a failure to express that a donation is made. When we consider the particular phraseology of the enactment, it is difficult to come to any other conclusion. The prohibition does not extend to the *216contract, but to the] instrument which is the evidence of it. If the legislature had intended to prohibit all donations, except those by public act, it must be presumed they would have said so, and would not have limited it to acts which contain them. A benefit, disguised under the form of an onerous contract, is an indirect donation, and it is not contained in the act but arises from evidence dehors it. Toullier, Liv. 3, tit. 1, cap. 6, No. 474. Ibid Liv. 3, lit. 2, cap. 4, Nos. 172 and 476. CEuvres"L'Agusseau, no. 9,361. Sirey, vo. 15, 42 — ibid 16, 383 — ibid 18, 383.
' An affidavit for a continuance setting forth that the party is informed & verily believes, is insufficient if it does not contain the name of the informer.Annexed to the motion for a new trial was an affidavit of the defendant, that he had been informed and believed, some -of the jury had been guilty of acts of misconduct. The refusal of the judge to grant a new trial, on this allegation, is one of the errors complained of. We think, however, he did not err. The affidavit does not disclose the name of the person who gave the information, and it is indispensible it should. Such was the law previous to the passage of the Code of Practice, and nothing in that work has changed it. The affidavit must be sufficiently specific to enable the state to prosecute the affiant for perjury, if he should swear falsely. It would be impossible to do so where the oath is, he has been informed and believes, without saying who informed him; for the allegation is not susceptible of being disproved — 3 Martin.
We think the judgment is erroneous in concluding the party on the question of fraud; and it is silent where it should not be, on a matter. put at issue by the pleadings; namely, the value of thé improvements, and the rents and profits.
It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled and reversed ; and it is further ordered and decreed, that the^petitioner do recover of the defendants the land claimed in the petition, reserving, however, the right of the latter, to show fraud in *217the sale from Trahan and wife to the petitioner, if an action be instituted to annul the conveyance on that ground. And it is further ordered, that the case be remanded to the court below, for an inquiry into the value of the improvements put on the premises while the defendant was in good faith ; and that, should the court decide that good faith terminated before judgment, that the value of the rents and profits be then investigated. The appellee to pay the coste of this appeal.