The judgment of the court was pronounced by
Rost, J.This is a suit by the administrator of Anna Sinnet, a free woman of color, with whom the late Joseph Uzée lived in open concubinage before his marriage, against the minor heirs of Uzée represented by their mother and natural tutrix, to recover from them a house and lot and a female slave, together with rents and profits, on the ground that in 1838 Anna Sinnet acquired said slave from Samuel N. Hite, for the price of $700 paid by her in cash, and that in 1841 she acquired the house and lot from Joseph Uzée for the price of $3500, which he acknowledged in the act of sale to have received.
The answer is, that Anna Sinnet lived in open concubinage with Joseph Uzée at the time these sales were made, and that they are donations in disguise, prohibited by law, and therefore void. That Uzée retained, and Anna Sinnet never claimed, the possession of the property after the sales, because they were unreal and simulated. The defendant prays that the acts of sale to Anna Sinnet be declared null and void, and that the house and lot and slave claimed be decreed to be the property of her minor children. There was judgment in her favor, and the plaintiff appealed.
The fact of concubinage and the absolute inability of Anna Sinnet to pay the price mentioned in the acts of sale to her are clearly proved, and the evidence in the record satisfactorily shows those sales to have been disguised donations.
It is urged that the sale made by Hite of the slave Harriet was a real contract and constitutes a valid title: but it is proved that Uzée himself bought the .slave, and that he caused the sale to be passed to his concubine to evade the prohibition of the law. He cannot be permitted to do indirectly what the law 'forbids him from doing directly, and the sale thus made does not place the con* cpbine. in a more favorable position than one made by Uzeé himself,
*282Tlie exception taken by the plaintiff’s counsel to the admission of evidence to Contradict the acts of sale and to show the real parties to it and the inability of the nominal purchaser to pay the price was properly overruled. The concealment of a' donation to a person incapable of receiving under the form of an onerous contract is in law a fraud upon the heir, and he may establish that fraud by all kinds of legal evidence. The right of the defendant to plead and to prove it in this suit cannot be doubted. The plaintiff claims the execution of contracts, and she may set up all legal defence against their validity. The rule, that possession follows the authentic act by which immovables are transferred is a fiction of law not applicable to cases like this. Thibodeaux v. Thomason et al., 17 L. R. 359.
Art. 1468, C. C., provides that those who have lived together in open concubinage are respectively incapable of making to each other any donation of immovables. This disposition of law is conclusive against the plaintiff. The real defendants in interest being minors, the plea of prescription is clearly untenable.
The judgment is therefore affirmed, with costs.