(dissenting). This is a peti-tory action, in which plaintiffs, Antoine Gon-soulin and Sidney L. Broussard, claim 20 arpents of land occupied by Stephen Sparrow. Before answering the suit, he disclosed that he possessed the property, not as sole owner, but as the owner of an eighteenth interest in it, and as the tenant or lessee of his co-owners. He averred that his father, Hy-polite Sparrow, owned a half interest in the property and had the usufruct of the other half interest; and that his, defendant’s, eight brothers and sisters, whom he named, each owned an undivided eighteenth interest in the property. Defendant’s pleading in that respect was in accord with article 43 of the Code of Practice, which declares that, if a lessee be sued in a petitory action, he must disclose to the plaintiff the name and residence of his lessor, who shall be made a par*109ty to the suit. In this case, plaintiffs did not make the defendant’s co-proprietors parties to the suit, as they might have done;' but the father, I-Iypolite Sparrow, intervened and joined his son,, Stephen, in defense of the suit. Judgment was rendered in favor of the plaintiffs and against the defendant and in-tervener in the district court, and on appeal the judgment was affirmed by the Court of Appeal. The case is before us on a writ of certiorari and review issued at the instance of the defendant and intervener.
The short question propounded is whether the rule excluding verbal evidence of title to real estate should deprive the court of its power to prevent a hardship in a case where a person, not in good faith, buys the property from one whom the public records declare to be the owner.
Hypolite Sparrow, who is an illiterate old colored man, bought the land in contest from Euzebe Gonsoulin, for $200, on the 22d of June, 1878, and built his humble home upon it, at the cost of $180. On the 30th of August, 1897, Sparrow and two other men bought jointly, from Robert Martin and J. B. Revert, a tract of land containing 81.70 arpents, at the price of $1,717.40, of which latter tract it appears that Sparrow acquired or went into possession of 50 arpents. The record does not show how Sparrow acquired from his associates a title to the 50 arpents. He and his wife and children resided upon the tract of 20 arpents and cultivated the land, raising crops of sugar cane, annually, and paying the taxes regularly, during a period of 38 years preceding the institution of this suit. The cane crops were sold annually to J. F. Martin, who owned a sugar factory in the neighborhood. In 1897, Sparrow owed George Bisk a small sum of money, and the latter seized Sparrow’s crop of sugar cane for the debt. Sparrow called upon J. F. Martin for a loan sufficient to pay the debt. The amount required was only $60. J. F.Martin made the loan of $60, and Sparrow’s debt was thereby paid and the seizure released. Sparrow’s understanding of the agreement was that he should sign a contract to sell and deliver the crop of sugar cane to Martin, and that the latter shuuld deduct the $60 from the proceeds. However, the notary public, or justice of the peace, who wrote the instrument, to which Sparrow affixed a cross mark.in lieu of a signature, made a deed purporting to convey Sparrow’s 70 arpents of land to Martin for the cash price of $60. The deed was made on the 6th of December, 1897, and was recorded in the current conveyance record. Although the land is described in the deed as containing 70 arpents, more or less, it is also described as being the same which Sparrow had bought from Euzebe Gonsoulin, which tract, in fact, contains only 20 arpents, and is the la'nd now in contest. It is not possible to determine from the instrument itself whether the notary intended to include in the deed all of Sparrow’s 70 arpents of land or only the 20 arpents which he had bought from Euzebe Gonsoulin. That is a matter of no importance, however, because the 20 arpents of land, with the improvements on it, was worth at least 6 times, and more likely 10 times, the $60. Sparrow delivered his crop of sugar cane to J. F. Martin and with the proceeds paid his debt of $60 in full.
All of the land acquired by Sparrow belonged to the marital community between him and his wife. She died, some time after the year 1897, leaving the nine children, who inherited her half interest in the property. J. F. Martin continued residing in the neighborhood for several years after his transaction with Sparrow, and died in 1907, in a foreign country, leaving as his sole heir his daughter, Mrs. Labbe, who resided in the parish adjoining that in which is situated the land in contest.
On the 18th of July, 1917, the plaintiffs in *111this suit bought from Mrs. Labbe for $200 15 of the 20 arpents of land which Sparrow had bought from Gonsoulin; and, on the 26th of January, 1918, plaintiffs bought from Mrs. Labbe the remaining 5 arpents of the land which Sparrow had bought from Gon-soulin. In each of the deeds by which plaintiffs bought from Mrs. Labbe, they recognized that the land was that for which J. E. Martin had paid only $60; for each deed contains a reference to the deed by which J. E. Martin bought from Sparrow, mentioning the date of the deed, the number of the conveyance record, and the page of the book, in which the deed was recorded. Both of the plaintiffs lived in the neighborhood of the land in contest and had lived there continuously from a date prior to the year 1891. They both admitted, in their testimony in this suit that they were aware, when they bought from Mrs. Labbe, .that Hy-polite Sparrow and his family had remained in possession of the property and had continued to cultivate the land, and that J. E. Martin had never taken possession or exercised any act of ownership of the property. When asked, on cross-examination, what the property was worth in 1897, plaintiffs referred to the deeds by which Sparrow had bought the property, as-evidence of its value. Defendant’s counsel thereupon introduced the deeds for the sole purpose of showing what the property was worth in 1897, and no objection was made to the evidence. Defendant’s counsel also proved by Hypolite Sparrow the enhanced value of the property as a result of the improvements which he had made. He also proved by the testimony of the husband of Mrs. Labbe that she had never taken possession or exercised any act of ownership of the property, and that she did not even know that the records disclosed a title in the name of her father, until a few days before she sold the land to the plaintiffs in this suit. We assume that the plaintiffs discovered the deed, by which Mrs. Labbe’s father is supposed to have acquired title to the property for $60, and that they informed Mrs. Labbe of the discovery.
Although both of the plaintiffs were put on cross-examination by defendant’s counsel, under Act No. 126 of 1908 (p. 185), and had ample opportunity to assert their gdod faith in buying the property from Mrs. Labbe, or their belief that the transaction between Hy-polite Sparrow and J. E. Martin was a genuine sale, they did not assert any such good faith or belief. On the contrary, they virtually admitted that they could not possibly have been in good faith or under the belief that the transaction between Hypolite Sparrow and J. E. Martin was a genuine sale. Having admitted that they knew that Hypo-lite Sparrow and his family had remained in possession of the property for 38 years, plaintiffs’ failure to make any assertion of having had faith in Sparrow’s transaction with J. E. Martin was a tacit admission that they knew that the transaction was not a genuine sale.
Tlaintiffs rested their case entirely upon the written deeds, and upon their objection to the admissibility of verbal testimony, under the circumstances of the case. The district court admitted the testimony, holding 'that the objection went to the effect of the evidence. Our opinion is- that, under the allegation and proof that Hypolite Sparrow was an illiterate man, unable to read or write, and without sufficient intelligence to distinguish between an act of sale and a security transaction, if either were read to him, and under the allegation and proof that the price mentioned in the pretended act of sale could not possibly have been a fair price, and under the allegation and proof that Hy-polite Sjjarrow and his family had remained in possession of the property continuously for 22 years after the .pretended sale, and .upon plaintiffs’ failure to assert that they *113were in good faith or under the belief that Mrs. Labbe was the real owner of the property, verbal testimony was admissible to show the real cause or consideration for which the pretended sale was made by Hy-polite Sparrow to J. F. Martin. Sparrow’s continued possession of the property was an evidence of his ownership. If the plaintiffs in this case had been creditors of Sparrow, they might successfully have seized the property in his possession. Our conclusion is that they were not misled by the record, because they could not reasonably have believed that the instrument purporting to transfer the property to J. F. Martin for only $60 was a bona fide or genuine, sale.
The three decisions cited by the Court of Appeal would not be authority for a ruling excluding the verbal testimony in this case; viz: Vital v. Andrus, 121 La. 221, 46 South. 217; Jolivet v. Chaves, 125 La. 923, 52 South. 99, 32 L. R. A. (N. S.) 1046; and Vanzant v. Bodcaw Lumber Co., 128 La. 923, 55 South. 577. In Vital v. Andrus, the ruling was that a purchaser in good faith from the owner of record was protected against an action en declaration de simulation, brought by the forced heir of the vendor of such owner of record. The decision was based entirely upon the conclusion that the defendant had relied upon the public record, in perfect good faith, in purchasing the property from the owner of record. In Jolivet v. Chaves, the ruling was that the vendor in an act of sale with right of redemption could not recover the property from a third person, who had bought in good faith from the vendee after the right of redemption had expired, by verbal testimony that the act of sale with right of redemption was intended to be an act of mortgage. In Vanzant v. Bodcaw Lumber Co., also, the third party who had purchased the land from the owner of record was in good faith, and the ruling rested upon that fact. The court did not exclude the verbal testimony in that case, but said: “The testimony is before us and will be considered.” And the court did consider and review the testimony and pass judgment upon its sufficiency and effect.
The two decisions cited by counsel for plaintiffs, Colgin v. Courrege, 106 La. 684, 31 South. 144, and Fletcher v. Peck, 6 Cranch, 87, 3 L. Ed. 162, are consistent with the opinion which I have expressed. The ruling in Colgin v. Courrege rested upon the fact that the third party who had purchased from the owner of record had acted in good faith. The decision in Fletcher v. Peck is not at all appropriate. The expression quoted from page 133 of the report does not appear to have been the basis of the decision, and if it were a part of the decision it would yet be consistent with the opinion which I have expressed in this case.
For these reasons, I respectfully dissent.