No. 21157 Precedential Judgment set aside, etc. Processed

Louisiana Sulphur Mining Co. v. Brimstone R. & Canal Co.

Louisiana Supreme Court · Filed January 28, 1918 · 79 So. 324

Also decided on this docket: La. Ct. App. 1st Cir., March 30, 1959 110 So. 2d 207

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Opinion text

On Rehearing. O’NIELL, J. The defendant has pleaded the prescription of five years, under article 3542 of the Civil Code; and that is the only defense urged on rehearing. [6-8] The article declares that actions for the nullity or rescission of contracts are prescribed by five years. It has no application to an action to have decreed null a contract that is void on its face. The instrument in ques *749 tion, with the procuration or resolution attached to it, in so far as it purports to convey title to anything more than a right of way or servitude, is null on its face. In that respect, it differs from the instruments that were in contest in the two cases relied upon by defendant, viz. Brownson v. Weeks, 47 La. Ann. 1042 , 17 South. 489 , and Weathersby v. Springfield Lumber Co., 141 La. 577 , 75 South. 416 . The test, as to whether the act is only voidable or absolutely void, with that regard, is, not whether it might or might not be ratified, but whether the nullity is only latent or is apparent on the face of the instrument. A sale made by one who does not own the property and has no authority from the owner -to sell it might be ratified by the owner, but it is none the less void, not merely voidable. The decree heretofore rendered is reinstated and made final. MONROE, O. J., dissents.