This is a petitory suit brought by Marie P. Evans and her husband, the plaintiffs in error, to recover a plantation of 1,911 acres, called the 'Richland Plantation,' situated in the parish of West Feliciana, near Baton Rouge, in the state of Louisiana. The action was originally commenced against William S. Pike, and is continued against his widow and heirs, the defendants in error. The plaintiffs claim the property under a gratuitous donation made by Ackley Perkins to his niece, the said Marie P. Evans, (then Marie Linton,) by act of donation dated September 5, 1861. The title of the defendants is based on a judgment of the Second district court of West Feliciana, rendered eighteenth February, 1859, for the sum of $16,890.25, with interest, in favor of one Eliza C. Johnson against J. & H. Perkins, upon mortgage notes given by them for the purchase of the plantation. An execution was issued on this judgment, and, the property failing to bring two-thirds of its appraised value, it was sold on the third of August, 1861, on 12 months' credit, pursuant to the Code of Practice of Louisiana; and the said Ackley Perkins, a brother of the mortgagors, became the purchaser, and to secure the payment of the purchase money he gave a 12-months bond for $30,695.80, with interest at 10 per cent. per annum, with two sureties. This bond contained a declaration of mortgage on the property sold, and an acknowledgment that it was to have the force of a final judgment, but it was not recorded. This was about one month prior to the donation made by Ackley Perkins to the plaintiff. The 12-months bond not being paid, an execution was issued upon it on the tenth of October, 1865, and under this execution the property was sold on the sixth of January, 1866, and William S. Pike, one of the sureties of Perkins on the bond, to protect himself, became the purchaser for the sum of $46,725, received a deed from the sheriff, and took immediate possession of the premises, and continued in possession until the commencement of this suit in October, 1871, a period of five years and nine months; and he and his heirs have been in possession ever since. The defendant William S. Pike, among other things, interposed the plea of prescription of five years, under article 3543 of the Revised Civil Code, being a re-enactment of the statute passed March 10, 1834, which declares that 'all informalities connected with, or growing out of, any public sale made by any person authorized to sell at public auction, shall be prescribed against by those claiming under such sale after the lapse of five years from the time of making it, whether against minors, married women, or interdicted persons.'
At the first trial of the cause the plaintiff undertook to rebut this plea by showing that the sheriff did not actually seize the property, and the circuit court held that this defect was not one of the informalities cured by the prescription. On writ of error from this court we held otherwise, and reversed the judgment. Pike v. Evans, 94 U.S. 6. Of course, we must have held that the sheriff was authorized to sell the property at public auction, for that is necessary in order to maintain the plea of prescription in such a case.
A second trial has since taken place, and it does not appear by the record that any attempt was made to show a want of seizure by the sheriff. His return to the writ of execution shows that he did seize the property. The plea of prescription, however, was not withdrawn by the defendants, but was still relied on; and the judge, besides charging the jury that if Pike was in possession of the plantation for a period of five years, and purchased the same from a person authorized to sell at public auction, any informality connected with, or growing out of, the sale was prescribed, went on to charge further that, under the terms of the decision of the supreme court in this case, the prescription of five years, if proved, was decisive of the controversy, operated as a bar to the plaintiffs' action, and gave to the defendants a title by prescription against the plaintiff. To this instruction the plaintiffs excepted, and the substantial ground of their exception was that the prescription of five years only cures defects and informalities in a sale, and not defects in the title itself, which, according to the laws of Louisiana, can only be cured by a prescription of 10 years of possession in good faith and under a just title.