on a rehearing:
The purchaser of minors’ property, by private contract, will be considered a possessor in bad faith.
Reference to a title deposited in the office of another notary, is not equal in law to a communication of that title to the vendee; nor is the means afforded by the reference equivalent to actual knowledge, which will alone destroy good faith.
Good faith is always presumed until the contrary be shown, and that pro sumption is not destroyed by proving that the vendee had the means of obtaining knowledge of the defect in his title.
Reference to the title deeds in another notarial office, repels the presumption that, as accessories to the thing sold, they were delivered to the parties.
The widow and heirs of Nelson, who claim under a purchase from one Mars in the year 1809, and a subsequent confirmation of their title by the government of the United States, obtained a rehearing in order that we might more fully examine whether the title of the plaintiils covered the premises possessed by these defendants. The plaintiils have also been heard on a demand made by them for a revision of that part of our former judgement, which considered the defendants as possessors in good faith.
The petition for a rehearing on the part of the heirs of Nelson, as well as the argument at bar seemed to concede, what indeed without such admission must have been so decided, that the original title to Beau Regard under which the plaintiffs claim, embraces the locus in quo. But it was contended, that the title to the whole tract conceded to the grantee by the Spanish government, is not vested in the plaintiffs.
The original title to Beau Regard is for twenty arpents front, bounded on one side by the Bayou Manchac, and on the other by lands of Juan Fitzpatrick.
A few months after the date of this grant, the grantee applied for, and obtained a concession for an additional forty *275arpents in depth, lying behind that first conceded, boundaries given in this title are, lands of Bouligny on one side, and on the other, those of Fitzpatrick. The
At the death of Beau Regard the property was inventoried under this description, “Seventeen arpents in front more or less with the ordinary depth, on which a fort belonging to his majesty is erected.”
Subsequently a transaction took place between a certain Madame Cartier, and the widow of the deceased, by which the property inventoried as his estate, was transferred to the former.
Cartier made a last will and testament, by which she instituted her sons Elias and Jean Babtiste Beau Regard, her executors, and at the same time bequeathed to them, and to the children of another son deceased, and to the children of a daughter also deceased, all the property of which she died possessed.
The sale to the ancestor of the plaintiffs, appears to have been made by the executors of Cartier, by the widow of her deceased son, and by the surviving husband of her daughter? also deceased. The two last mentioned most probably acted for their minor children, though the act speaks of them as selling in their own right. The property is described as containing “eight arpents of land in front by the depth of eighty or more, bounded on one side by the old town of Manchac, and on the other by lands of Madame Hysen.” At the close of the instrument and before signing, the vendors declare, that it comprehends all the lands behind those mentioned in virtue of the purchase made of them by Louis Toutant Beau Regard, through his mother Madeline Cartier, from Captain Marlin Sulcedo, deceased.
In a sale made by Fletcher to one Canez, the property is described as containing eight arpents in front by the depth of eighty. Canez failing to pay the purchase money, retransferred the land to the plaintiffs, as heirs of Fletcher deceased, and the same description is given of it, eight arpents in front by the depth of eighty.
*276But in the sale from the widow of Fletcher to Clarke, a designation of the quantity sold is found totally at variance with that given in the conveyances under which her husband had acquired it. The land is stated to have not eight, but twenty-eight arpents in front, with eighty, more or less, in depth; and to be bounded on one side by the town of Mauchac, and on the other by the lands of Ms. Fauchon.
The plaintiffs must show title to the premises. The concession for twenty arpents called for the Bayou Manchac as the lower boundary. The sale from the representatives of Cartier to the ancestors of the petitioners, conveys eight arpents in front, bounded below by the town of Manchac. This town of Manchac is proved in evidence to have extended four arpents above the fort, and the fort is shown to have had an extent from four to six superficial arpents. In whatever way then the act is considered, the terms used in it did not convey to Fletcher, the land possessed by the heirs of Nelson. If we take the designation of quantity, we find he only purchased eight arpents in front, instead of twenty, which his heirs now claim. And if we admit that the boundaries given, control the enumeration of quantity, as they ought to do, still these boundaries do not give a front of twenty, but of fourteen arpents. We can discover nothing in the conveyances, which would authorize us to give the plaintiffs land beyond these boundaries. It Is possible the heirs of Cartier intended to sell, all the land to Fletcher, indeed it is probable they did, but assuredly they have not done so. The act itself contains no such declaration. It states the sale of eight arpents in front with the depth of eighty, which they inherited from their ancester, terms which would be satisfied by a sale of a part, as well as of the whole of the tract.
We, therefore, think the plaintiffs are not entitled to recover against the heirs of Nelson, whose title does not extend beyond the old town of Manchac, by which the plaintiffs are bounded.
The next question relates to the good faith.
The purchaser of minors' property by private contract will be considered a possessor in bad faith. Reference to a title deposited in the office of another notary is not equal in law to a communication of that title to the vendee, nor is the means afforded by the reference equivalent to actual knowledge which will alone destroy good faith.The mother of the plaintiffs sold by private act to Daniel Clarke. This mode of alienating minors’ property is prohibited by law; he was, therefore, a possessor in bad faith.
On the sixth March, 1811, Clarke sold to Bois Fontanes the one-half of the land lying at Mauchac, which he had acquired by act passed before Pedro Pedescleaux, on the 23d June, 1806. This sale contains the usual clauses of warranty.
The first of August, 1815, the executors of Clarke sold, with warranty, to Cavalier Pere the other half, and gave, verbatim;, the same reference for Clarke’s title, with that contained in the act to Boisfontanes, which has been just set out.
The sale from these persons to those now in possession, all admit of the same remark. In the deeds of conveyance it is stated the vendors acquired them by purchase from Clarke, or his executors, and reference is given to the date of the sale, and to the office of the notary where it was passed.
The titles under which the defendants claim are what the law denominates just titles, and the possessors must be considered in good faith, unless the reference in the deeds of sale, to the title under which the conveyance is made, destroys that good faith. The question which the argument at bar presents, may be considered in two points of view. First, is the reference to a title deposited in the office of another notary, equal in law to a communication to the vendee of that title, or, in other words, does it create such a presumption juris et de jure of a knowledge of its contents, as that other proof of the fact is superfluous, and evidence cannot be received against it? We think not. Nothing of that kind has been shown, and we know of no such presumption in our law. If this be true, the second aspect under which the subjectshould be considered is, whether the means of obtaining knowledge afforded by the reference, be equivalent to actual knowledge? We are not prepared to say so; because that reference may not be followed up by examination of the title; the knowledge of the defect of title is not in fact acquired, and nothing but actual knowledge will destroy the good faith. When the title -under which the vendor sells, is shown to the *278buyer, or delivered to him, or he declares in the act he is acquainted with it, the defects of that title are, of course, known to him; but unless a reference to the place where that title can be found, be equivalent, in law, to an actual exhibition of it, we cannot presume in point of fact, the knowledge was obtained. The well established rule being, as we understand, that good faith is always presumed, until the contrary Is shown. That presumption is not destroyed, in our judge-menh> by proving that the vendee had the means of obtaining knowledge of the defect in his title. This would be saying, that negligence in not making himself acquainted with the ^ac^’ was e(luivalent to an ignorance of law, when the fact was brought home to him.
Good faith sumedaVSuntil b^showlfand that presúmpst°oyedn0t by fh'evemieehad the means of knowledge of Ids titiefeCt m Reference to in^nothei^notarial office, repels the presumption that to the^thTng deliveredW°to the parties.It has been argued that the title deeds are considered as accessories to the thing sold, and must be presumed to be delivered. But this presumption is repelled in the present case by a reference to the title in another notarial office, a reference which would have been vain and useless, if the title itself had been delivered.
Authorities have been read from the English books, which ^mPu^e knowledge to a buyer of any incumbrance, created by titles to which he may be referred by the act of conveyance under which he acquires the property. These decisions are not binding on us, and the reasons on which they rest do not recommend themselves to our adoption. They establish a presumption, we believe, totally opposed to the mode of transacting business in this country. In the greater number of instances we understand the fact to be, that a buyer who purchases with warranty, does not examine all the previous titles. He is in general content with that which the vendor professes to sell, and with his guarantee.
The case decided in 2 Martin’s Reports, N. S. 618, does not impugn the principles just laid down. That was an action, in warranty, founded on an allegation that the vendor had concealed a fact which it was important the vendee should know, id est, the existence of a mortgage on the premises. The court held that the reference in the act of sale to the *279vendee of the title under which the vendor had acquired, in which title express mention was made of this mortgage, disproved such an allegation, and exculpated the vendor from the charge of concealment. This decision was correct, because the means afforded of knowledge by express reference, fairly rebutted any such intention. But here we are required to say, that the means afforded to obtain knowledge not only destroyed a recourse founded on an alleged concealment, but is equivalent to actual knowledge. Things quite different. In the one case, the means expressly given of acquiring information, repelled the charge of concealing the fact; and whether the vendee followed it up by inquiry or not; the vendor could not be said to have acted in bad faith, and here, unless the vendee followed up the reference by an examination of the title, he had not the knowledge, and was not in bad faith.
Ouvillier and Mazereau, for appellants-. Moreau, Turner, and Morgan, for appeellees;It is said that the heirs of Clarke have been brought in as warrantors; that he was in bad faith, and that the question should be examined in relation to him alone.
The original defendants are the persons upon whom the judgement of this court must first bear. If they were not in bad faith, they cannot be mulcted for that of their vendor. If the sins of the warrantor were to be visited upon those who call him into court, the resort against the former would often work an injury to those to whom the law presents it as a benefit; for, after having paid for his misdeeds, his insolvency might defeat their indemnity.
Our former judgement, therefore, remains untouched, except so far as it concerns Nelson’s heirs, and as to them, it is ordered, adjudged, and decreed, that there be judgement against the plaintiffs, with costs in both courts.