On Rehearing.
By the WHOLE COURT. PROYOSTY, C. J.[2] In Bedford v. Urquhart, 8 La. 241 (28 Am. Dec. 137) this court said:
“A sale of immovable property, followed by tradition by a person styling himself the attorney in fact of the owner, but whose power of attorney is not produced, is only defective for want of the evidence of his authority, and not a nullity of form resulting from his legal incapacity. If he had stated himself to be the tutor or curator of the owner, the sale would be null for defect of form, as the purchaser would be considered as having purchased in bad faith, from a person legally incapable of selling.”
In commenting upon the Urquhart Case, this court, in the case of Reeves v. Towles, 10 La. 276, on page 284, said:
“The next question is, What is the character of this defect? Is it such a defect of form as vitiates the title considered as the basis of the 10-year prescription? If the parish judge had assumed to sell the land as his own, his want of title would not have destroyed the right of his vendee to prescribe; and we hold as in the ease of Bedford v. Urquhart, 8 La. Rep. 234, 28 Am. Dec. 137, and Id., 241, that where one takes upon himself, as the attorney in fact of another, to sell, and delivers possession, that „his deed of sale may form the basis of prescription, because the defect consists in the want of evidence of the mandate, and is not a nullity of form resulting from the legal incapacity of the vendors.”
See, also, Hall v. Mooring, 27 La. Ann. 596; Giddens v. Mobley, 37 La. Ann. 417; Dufour v. Camfrane, 11 Mart. (O. S.) 714.
On the original hearing of this case these authorities were not referred to. They are, of course, conclusive. No authorities having been cited on this point in the original hearing, we simply assumed that there were none, and dealt with the matter as of first impression, and erroneously (in the light of these authorities) took the view that the defect in question in the title was one of form, and therefore fatal to the plea of prescription of 10 years.
[3] We have also become convinced that the entire tract described in the deed in favor of Beck was intended to be conveyed.
The plea of prescription of 10 years must therefore be sustained, and the suit of plaintiffs dismissed.
The judgment below was' of nonsuit only;, it should have been absolute.
The judgment appealed from is therefore set aside; and it is now ordered, adjudged,, and decreed that the suit of plaintiffs be dismissed, at their cost in both courts.