FOURNET, Chief Justice.
The plaintiffs claim a 57% interest in the land, which is located in the Bayou L'Ours area of Lafourche Parish and was formerly suitable only for trapping of fur-bearing animals; within recent years successful exploration for oil has taken place nearby. At one time it formed part of the community which existed between Lawrence Cheramie and his wife, Celeste Terrebonne, both deceased; the Cheramies were the parents of a large number of children, who in turn left numerous heirs. In 1928 a suit for partition by licitation was instituted by Frederick C. Scully
On August 15, 1939, Mr. Eugene Stanley, a member of the Louisiana Bar, addressed a letter to Mrs. Peltier enclosing a list of the names of the Cheramie heirs
In bar to the plaintiffs' suit, the defendants filed pleas of prescription of one year, under Article 613 of the Code of Practice, with respect to the implied attack on the judgment ordering the partition of the property in 1934; of two years, under Article 3543 of the LSA-Civil Code, as to sales at public auction made by the sheriff; and pleas of prescription liberandi causa of five and ten years under Articles 3542, 1413 and 2221 of the LSA-Civil Code.
Following trial of these pleas, at which evidence was adduced, the trial judge, in a well-considered opinion, concluded that not only had the plaintiffs known of the alleged fraud and deceit for more than a year before the suit was filed, but some had possessed knowledge of the matters of which they are complaining here as far back as 1934, while the others had known at least as far back as 1939, through family discussions and a letter from Mr. Stanley who, following employment by certain of the heirs of Lawrence Cheramie (as above stated), circularized all of the known claimants with the view of securing contracts of employment from them in the event they were desirous of joining in the effort to recover the property. He therefore maintained the pleas of prescription and dismissed plaintiffs' suit.
An examination of the record discloses that the trial judge's conclusion is supported by an overwhelming preponderance of the evidence. While the plaintiffs, in response to their attorney's question concerning their first knowledge of the sales of record in the courthouse of Lafourche Parish, answered with the stereotyped response: "About five or six months ago," their testimony was refuted by competent documentary evidence and was, moreover, weak, contradictory, unworthy of credence in many instances, and in other ways unimpressive or impeached.
It is apt to observe that the plaintiffs are not seeking to have the Court declare null the various transfers described in the petition; nor are they seeking to set aside the
Under the provisions of the LSA-Civil Code, "Engagements made through error, violence, fraud or menace, are not absolutely null, but are voidable by the parties, who have contracted under the influence of such error, fraud, violence or menace, or by the representatives of such parties", Article 1881; and "may be avoided either by exception to suits brought on such contracts, or by an action brought for that purpose." Article 1882. "In all cases, in which the action of nullity or of rescission of an agreement, is not limited to a shorter period by [a] particular law, that action may be brought within ten years. That time commences * * * in case of error or deception, from the day on which either was discovered * * *." Article 2221. In Fried v. Bradley, 219 La. 59, at page 80, 52 So.2d 247, at page 254, we observed: "Thus it may be seen that the lawmakers in their wisdom have deemed it to the interest of society to interpose a statute of repose by fixing a time limit (10 years), after which the parties at interest, by their silence and inaction, are conclusively presumed to have acquiesced in and ratified the act, and to have renounced such right as they may have had to attack it."
The plaintiffs contend, however, that since Peltier recovered for the plaintiffs, as their attorney, the land they now claim, he could acquire from them only under the prescription of ten years acquirendi causa in good faith, Articles 3478 and 3479 of the LSA-Civil Code; that in the case of bad faith, an action to recover the land is barred only by the prescription of 30 years, Article 3548 of the LSA-Civil Code; and that this case should be remanded to the District Court for trial on the charge of fraud and bad faith. Suffice to say that prescription acquirendi causa is not pertinent to the issue, and the authorities cited are inapplicable.
The plea of prescription of ten years liberandi causa is therefore maintained as to those plaintiffs who admit their respective signature or mark to the instruments which were allegedly procured through fraud or deception.
We are in accord with the plaintiffs' observation in a supplemental brief that Article 2221 applies only in cases in which the nullity or rescission of an agreement is sought, and can have no effect in the case of a forged instrument, since forgery is in derogation of public order and good morals, is not susceptible of ratification, and can never be prescribed against. Consequently, as to the plaintiffs Mazie Gisclair Eymard and Celeste Cheramie Gisclair, the pleas of prescription are overruled. Fried v. Bradley, 219 La. 59, 52 So.2d 247, and numerous authorities therein cited; Whitney National Bank of New Orleans v. Schwob, 203 La. 175, 13 So.2d 782. The authorities relied on by the defendants (in supplemental brief) to support a contrary view are not apposite, being based on the principle of agency by which the principal may ratify the unauthorized acts of his agent.
Counsel for the defendants now state, however, that this point was not argued in the lower court and that the claim of forgery had apparently been abandoned; that the plaintiffs not only failed to specify any error in this regard in their brief on appeal, as required by the Rules of this Court, but made no mention of it in seeking to have this Court remand the case for trial "of the issues of fraud and bad faith on the
While we do not question the factual correctness of counsel's statement, we are powerless to adjudicate on the subject because it is a matter that goes to the merits of the case; it can only come up on appeal from an adverse decision by the trial court, which has not yet passed on the subject.
For the reasons assigned the judgment of the lower court is affirmed in all respects except as to the plaintiffs Mazie Gisclair Eymard and Celeste Cheramie Gisclair; as to them the judgment is annulled and set aside, the pleas of prescription are overruled, and the case is remanded for further proceedings not inconsistent with the views herein expressed.