The judgment of the court was pronounced by
Rost, J.The plaintiff, being the testamentary executor of his father, William Ross, represents that the testator left at his death five children, George, John, Robert, Ann, and himself, each of wbom inherited one-fifth of his succession; that Ann subsequently died intestate and without issue, leaving her brothers her heirs, each for one undivided fourth. He further alleges that he purchased the share of John Ross, on the 20th of June, 1835, and that the share of Robert Ross, now deceased, was purchased by him and George, he, the plaintiff, having paid $1,400, and George $600, of the purchase money. He avers that, in consequence of his purchase, John’s share in the succession is limited to the fourth of the share of Ann, and claims that the remainder be divided in the proportion of five-eighths to himself and three-eighths to George. To this petition praying fora partition'of the succession, John Ross answered, that the pretended sale under which the plaintiff claims his share in the succession was a complete and absolute nullity; that the plaintiff was legally incapable of acquiring by purchase the defendants’ interest in the succession ; that the sale was made in fraud of his rights, and that the price was inadequate and dis-proportioned to the value of the thing sold. ‘He further averred that, by reason of his incapacity to purchase, be has no title to the share of Robert. George Ross, the other defendant, filed a general denial, admitted the heirship; and joined in the prayer for a partition. The court below rendered judgment according to the prayer of the petition, and the defendants appealed.
In the case of Michoud et al. v. Girod et al., on which the defendants mainly rely, the Supreme Court of the United States remarked: « We scarcely neecf add that a purchase by a trustee of his cestui que trust, sui juris, provided it is deliberately agreed or understood between them that the relation shall be considered as dissolved, and there is a clear contract, ascertained to be such after a jealous and scrupulous examination of all the eireumstances; and it is clear that the cestui que trust intended that the trustee should buy,and there is no fraud, no concealment, and no advantage taken by the trustee of information acquired by him as trustee, will besustained in a court of equity." 4 Howard, 556. This rule of equity jurisprudence harmonizes with the dispositions of our Code. The incapacity created by arts. 1139, 1784, endures as long as the relation of trustee and cestui que trust, and no longer. If the contract by which the trustee acquires the property previously committed to his charge, necessarily terminates *536that relation,- it may be voidable on other grounds, but it does not come within the prohibition.
The sale by two of the heirs, in this case, of their hereditary rights, necessarily implies the deliberate intention on the part of the vendors that the relation of trustee and cestui que trust should cease, so far as their shares went. There is a clear contract made by persons capable of contracting, and who intended that the trustee should buy.
Fraud and concealment are alleged, but no evidence whatever has been adduced in support of the allegation. It is contended that, in the sale of John Ross, concealment and fraud are proved by the inadequacy of the price. The evidence of this fact is very loose and unsatisfactory. But if it was the reverse, the plaintiff has pleaded the prescriptions of four and ten years ; and we are of opinion that one of the two pleas must avail him. Civil Code, arts. 1870, 2218.
Inadequacy of price is either lesion or evidence of fraud. If it is lesion, the action is barred by four years. If taken as evidence of fraud, the action is limited to ten j ears from the discovery of the fraud, which, in a case like this, must, for want of better evidence, be taken to be the date of the sale. The prohibition found in art. 1784 of the Civil Code, on which the defendants rely, is analogous to that found in art. 1596 of the Code Napoléon. The nullity which this last article establishes is held by french commentators and courts of justice to be merely relative, and introduced exclusively in the interest of the owners of the property of which that article forbids the sale. Rogron, Code Civil, on art. 1596. 3 Delvincourt, p. 66, 126, notes.
It is a rule that admits of no exception that, every man who has the right to attack an onerous contract which the law declares null for his private benefit, makes it valid and obligatory upon him by his ratification, express or implied, or, in default of ratification, by his voluntary execution of it subsequently to the period at which the obligation could have been validly confirmed or ratified. The sale made, without the formalities of law, by the tutor, of the immovables belonging to his ward, is considered in law as an absolute nullity; and yet the minor may ratify it, expressly or tacitly. L. 10, ff. Re Rebus Eorum. Toullier, vol. 7, nos. 594, 595, 596 ; vol. 8, nos. 517, 518. Every nullity which may thus be ratified, is held by the french courts to be prescribed by ten year's, under art. 1304 of the Napoléon Code, which is word for word the same as art. 2218 of our Code. This has been the jurisprudence of France ever since the ordinance of Louis XII, passed in 1510, for the purpose, as is therein stated, que les domaines etpropriüés des chases ne soient incertaines et sans súreié, es mains des possesseurs d’iceües, si longuement qu’ils Vont etc ci-devant. Francis I, in an ordinance passed in 1535, re-enacted this disposition, and gave the same reasons for its necessity. The Code Napoléon, says Toullier, has sanctioned the disposition of this ancient legislation; it does not distinguish whether the nullity is absolute or relative, or the causes in which it originates, but fixes in all cases the duration of the actions of nullity and rescission to ten yoars, in order to insure the stability of transactions and the peace of families. 7 Toullier, no. 599.
The only class of nullities to which this prescription is considered in France as inapplicable, are those resting on motives of public order or utility, or taking their source in the respect due to morals; and, even in those cases, if the con. tract ceases to be illicit, it is from that time susceptible of ratification, and the prescription of ten years is applicable to it. We must presume that our *537law-givers in adopting this disposition of the law of France, intended that it should receive here the application it has received there during the last three centuries. It has been thus uniformly understood heretofore, and nothing would authorize us to change in that respect the jurisprudence of the State.
Bonford, for a re-heaving. The judgment of the court in this case, so far as it concerns the rights of John Ross, is based upon the prescription of ten years, pleaded, for the first time, by the plaintiff in this court. Petitioner submits that the Supreme Court is incompetent to pass, in the firs! instance, on any issuable plea. Tho constitution limiting its jurisdiction exclusively to cases and questions presented by way of appeal from an inferior tribunal. Whether or not a right or obligation is extinguished by prescription is a mixed question of law and fact,to be tried and determined upon pleadings and issues properly made up between the parties. If this issue be for the first time tendered to the opposite party, when the case is in the Supreme Court, no other action ean be had than to remand the case for farther action to the inferior court. It is assumed by your petitioner that, without the intervention of the plea of prescription, he would have been entitled to have had the sales to the plaintiff' annulled. The court lays much stress upon that portion of the opinion of the United States Supreme Court, in the case of Michoud v. Girod, in which it is intimated that a case might possibly present itself, in which a sale, by a cestui que trust to his trustee, might be sustained by a court of Equity. Although the court there puts the case as an extreme one, it is still difficult to reconcile this portion of their opinion with the absolute and unqualified declaration of the incapacity of trustees to purchase, as set forth in other portions of that document. It is to be observed that the cases quoted in support of the modification of the rule, are all english cases, which were carefully and elaborately reviewed by Chancellor Kent in the case of Davoue v. Fanning, 2 John. Chan. Rep. 254, who did not hesitate to express his disapproval of them, and to insist on the absolute and unqualified character of the incapacity. But a very wide distinction is to be observed between the present case and that of Michoud v. Girod, in so far as the reasoning of the Supreme Court, just referred to, can be held applicable. It must not be forgotten that in the Girod case, the court was sitting as a court of Equity ; that it was administering relief according to the rules of equity proceedings, and according to the maxims and principles prevalent in courts of Equity. They were considering the extent of the general maxim, created by the english Equity courts, that a trustee can never become á purchaser. They were not, in that branch of their opinion, quoted by the court in the present case, passing upon the effect to be given to an absolute, stringent statutory provision. Neither at common law, nor by statute in England, did the incapacity in question exist. It was created by the court of Equity, and the Supreme Courtof the United States, in examining the doetrine of the cases upon this subject, took occasion to quote, with approval, the modification which the english courts had thought proper to make. Equity courts administer relief according to the circumstances of the particular case : and although, where the law determines the right of the parties, they are bound equally with courts of law to follow and observe the law, yet where they are applying principles and maxims which have been created by their own tribunals, they will never consider these of so unbending a character, but that they shall be made to yield to the peculiar circumstances of a case not within the mischiefs designed to be guarded against by the rule. The third' chapter of Story’s work on Equity Jurisprudence, contains numerous instances.*537The defendants have generally denied the allegations of the plaintiff, and the correctness of his account. The sale from Robert to him and George, states them to have been joint and equal purchasers. But the account presented distributes this share as if 551,400 of the price had been paid by the plaintiff, and 55600 only by George. There is no evidence in the record to justify that distribution.