Plaintiff sues to have a ■cash sale, absolute on its face, made by her to the defendant, of improved real estate decreed-to have been a contract of security for .a debt of her husband, and as such null, and to have the inscription of same in the book ■of conveyances of the clerk’s office erased.
She does not allege error, nor fraud, nor marital coercion, nor inadequacy of price, ■but simply that the real nature of the continued in possession and has done so up to the present time.
L1] An. exception of no cause of action was filed, and of course was properly overruled, since any contract by which a married woman may have sought to bind her property for a debt of her husband is null, no matter what its form may be.
The district court and the Court of Appeals found the facts to have been as stated ■by plaintiff, and gave judgment in her favor.
L2J This proof was made by oral evidence. Defendant objected to it on the ground that it varied and contradicted the written act of sale. In Leblanc v. Bouchereau, 16 La. Ann. 11, where the same objection was made in a similar suit, the court said:
“This is not an action to annul a simulated conveyance; but one to declare invalid a contract, in appearance legal and binding, but covering a violation of a prohibitory law. It is well settled that incapacitated persons, when seeking to be relieved from the effects of engagements, contracted by them in fraudem legis, are entitled to show the real nature of the transaction”— citing Thibodeaux v. Herpin, 5 La. Ann. 578, where the right of a married woman to prove by parol that an absolute sale made by her to. a third person was a disguised donation to her husband, was recognized.
In Chaff'e & Bro. v. Oliver, 33 La. Ann. 1008, where parol evidence was offered by a married woman to show the true character of a mortgage given by her for a debt of her husband, as she alleged, 'the court said:
“She is not confined to counter letters and interrogatories on facts and articles, but may resort to parol evidence.”
Douglass v. Douglass, 51 La. Ann. 1456, 26 South. 546, is another case of an absolute sale the true nature of which the wife was allowed to show by parol. A large number of cases are there cited, and the rule on this point is authoritatively announced. Caldwell v. Trezevant, 111 La. 410, 35 South. 619.
[3] The sale was made in 1882, and this suit was instituted in 1911, and defendant pleaded prescription of plaintiff’s right of action. But prescription does not run against the party in possession. “Queo temporalia ad agendum perpetua sunt ad excipiendum.” I-Iennen Dig. p. 1235, Nos. 5, 7, 8.
“This rule,” said this court in Delahoussaye v. Dumartrait, 16 La. 91, “which is derived from the Roman jurisprudence, has often been improperly applied, and made to cover direct demands under the name and form of exceptions. It is now, however, well understood to exist only in favor of a defendant in the possession or exercise of the property, right, or position attempted to be taken from him. If, for instance, a vendor is left in possession of property after a sale of it which might have been annulled on the score of lesion, he may remain silent as to this defect in the. contract, and reserve to himself the right of pleading the nullity of the sale, by way of exception, whenever he shall be sued by the purchaser for the delivery of the property; until then he has no interest to bring a suit; he might consider the contract as a nullity, and believe that the purchaser will never call for its execution; hence the maxim, ‘Posidenti non competit actio sed exceptio.’ If, on the contrary, such a vendor had delivered the property, and suffered the purchaser to remain in possession a length of time sufficient for the prescription of the action of rescission, he could not afterwards, by bringing a petitory action, thus compel the purchaser to produce his title, and then by way of exception ask for its nullity or rescission.”
Defendant also pleaded estoppel; but it is too well settled to need citation of authority that estoppel has no application to the ease of a married woman seeking to be relieved from contracts of security for a debt of her husband.
Judgment affirmed.