delivered the opinion of the court.
The counsel for the defendant makes a false application of the elementary principles to which they refer the court, and misconceive the grounds assumed in the decision, and the extent to which it goes.
The only question which the court considered themselves called upon to decide, was whether the plaintiffs had a title translative of property upon the face of it, and were in possession under that title; if they possessed and had title, the defendant had no right to inquire into its defects in this suit. The injunction must be perpetuated, and the defendant left to his legal remedy in a direct action. No principle is better-settled in our jurisprudence, than that.no relative nullities in titles, accompanied with possession, even those resulting from fraud, can be inquired into collaterally. Many of the cases in which it was so determined, are referred to in the decision, and others may be found in the reports. See Weeks vs. Flower et al., 9 Louisiana Reports, 379.
No relative nullities in titles, accompanied by possession, not even those resulting from fraud, can be inquired into collaterally. It must be by direct action. Naked possession for more than a year, creates the presumption of ownership in the possessor, sufficient to put the right owner upon proof of his title. He must make that proof as plaintiff in a direct action for that purpose, and is not permitted to throw the burden of proof on the possessor by alleg-ingtitle when he is sued for a disturbance. So, the person claiming to be the right owner, when sued for disturbance,cannot bring a peti-tory action until after judgment in the pos-sessory one, and if he is condemned, not until he has satisfied the judgment.The reason of those decisions is founded in the right which possessors have to institute a possessory action, when they are disturbed either in fact or in law, against whoever causes the disturbance. The title is only introduced to show the beginning and extent of the possession, and is not indispensable to the right of action. Naked possession for more than a year, creates a presumption of ownership in the possessor, sufficient to put the right owner upon proof of his title, and he must make that proof, as plaintiff, in a direct action instituted for that purpose ; he is not permitted to throw the burden of the proof upon the possessor, by alleging title, when he is sued fora disturbance, and he cannot even bring a petitory action, till after judgment has been rendered in the possessory action ; and if he has been condemned, not until he has satisfied the judgment given against him: Code of Practice, article 55. This is one of the reasons, if not one of the consequences of the maxim of law, beati possidente. It is in vain to say, then, that if the title of the plaintiffs had been called a donation, the defendant could have made a triumphant defence ; since if the title was good on the face of it, as a donation, and possession had passed under it, the defendant was estopped and could make no defence at all. The error was that of the defendant, not that of the court: he should have known that after a possession of near thirty years, the plaintiffs were entitled to be heard before their land was sold from under them.
In the case of Bissel and Wife vs. The Heirs of Erwin, this court held valid as a sale, an act which the parties believed to be a lease ; and the correctness of that decision never was doubted. To dismiss this action for the mistake of a name, would have been trifling with justice and the rights of the plaintiffs. The case of Delogny vs. Smith, was very different from the present; there the plaintiffs had expressly averred in their petition, that they claimed by inheritance from their mother, and by a donation from their father. Upon the trial, they attempted to establish a title by a transaction between their father and themselves. The defendant objected to the introduction of that evidence, and the court considering it as *397contradicting the averments of the petition, sustained the objection. In the present case, the plaintiffs have not two different titles: that found in the record, is the only one upon which they relied from the beginning ; they have, it is true, called it a sale, when it was a donation ; but whatever be its name, it was admitted in evidence without opposition from the defendant. We found it in the record, and vve acted upon it as we were bound to do. If it came there improperly, the defendant neglected the means of preventing it, and when they say the decision of the court has taken them by surprise, they forget that they argued the case at length, on the supposition that the title of the plaintiffs might be a donation, and asked us repeatedly to remand the case if we should come to that conclusion. The only thing of which they seem not to have been aware, was, that if the plaintiff’s title was a donation, they must have recourse to a direct action to avoid it. The distinction attempted to be drawn between this case and that of Holmes vs. Patterson, will not stand the test of examination. After the plaintiff in that case had made out his title, the defendant was bound to make out his also : he could not hold the property unless he did. He claimed by virtue of a sale, and the court maintained him in his possession under a donation. According to the position assumed by the defendant’s counsel, that judgment was wrong. It should have- been in favor of the plaintiffs, reserving to the defendant his rights under a donation.
That the title of the plaintiff’s ancestor was valid, as a donation, under the laws of Spain, we cannot for a moment doubt. It would be valid as such, even now. The authority cited from Voet, appears to us conclusive, and no attempt has been made to answer it. It is contended that the clauses which Febrero mentions as usual in acts of donation, are not all found in the deed of the plaintiffs. Let it be so, and what results from it ? Simply that the notary may have rendered himself liable to censure, and not that the validity of the act was in any manner affected by the omission. If the defendant’s counsel had read on a little further, they would have found, also, the forms and clauses of style, in acts of sale. *398This did not prevent verbal sales, or verbal donations, when tradition followed, from being valid. In donations, partió u-larly, no form or clause was required, under pain of nullity; , consent °I the parties ; the thing given and the tradition, were sufficient.
under the making '"dona-oular fornT'or clause was resent^of the par-given thandhthf tradition were sufficient. Even verbal sales and permitted, when tradition follow- A sale without fietifioús^price* although nuil as of one of the es-sitSsof thatcon-theh’W'vaihTas a donation, provided tradition follows.French authorities lose much of their weight, when applied *° the present case, because they refer to a system of laws under which donations and sales of real estate must be made in writing, and in a particular form, in order to produce any efi"ect i and yet Pothier, the greatest of the French commentators, says, that even there, the sale of a valuable estate for . . . ... , a crown, is a donation, because a crown is not a price ; and ^ a crown is not a price, there is necessarily no price at all ; and then what becomes of the principle laid down by Guilhon, that a deed must be valid in law as a sale, before it can produce any effect as a donation. He has evidently adopted the doctrine of Paul, upon which Foé'í comments, without understanding it. , Taking without any limitation the words of the author, that a sale without a price, is, as if it never had been made, ] pro non facta est, he has argued that if it is null and has ■ never been made, it can produce no effect even as a donation, ■ and has given us at great length, the benefit of his discovery, gut y0expressly tells us, that the text of the Roman laws and the commentary of Paul upon them, are not to be thus understood, and lays down the rule, that a sale without a Piace5 or a fictitious sale, although null as a sale for want of one of the essential requisites of that contract, is valid as a - . ., , . ,.,. e 1¶ donation, provided tradition follows.
We take the opinions of Foéí and Pothier, in preference to that of Guilhon, and we are satisfied with the correctness of the decision. The rights which the defendant may have on account of the revocation of the donation, by the subsequent birth of children to the donor, are left open to him, subject to the Spanish laws, which provided that donations might, in such cases, be revoked or reduced when they included all, or the greater part of the estate of the donor.
The rehearing is refused.