May 26, 1919, from which date the plaintiffs | square bounded by Dryades, South Rampart, have been in possession of said property, First and Second streets, described by the renting it out at $55 per month and paying No. 4, on a certain plan of E. Eisenstream, insurance and taxes. The present suit was surveyor, dated May 6, 1868, a copy of which filed June 8, 1920, and August Rudolph Lang- is annexed to an act passed before W. J. ermann, defendant herein, filed his answer Castel, notary public, on August 31, 1868, November 16, 1920, claiming to be the owner which lot measures thirty (30) feet front on of a two-thirds interest in said property, Dryades street, by one-hundred and fifteen while the act of sale upon which plaintiffs (115) feet, six (6) inches, between equal and rely as the basis of prescription is of date parallel lines," being the same property February 21, 1910. which the said society acquired from Rudolph Langermann on May 26, 1919, by act of sale passed before W. Morgan Gurley, notary public, registered in Conveyance Book No. 308, p. 59. The defendant August Rudolph Langermann to pay all costs. On Rehearing.

While it is true that the dation en paiement made by Rudolph Langermann to plaintiffs on May 26, 1919, states that he married the second time in January, 1915, and that his second wife was still alive and residing with him; yet under article 3482 of the Civil Code, even if the possession of plaintiffs from May 26, 1919, be held as in bad faith, yet plaintiffs' possession having commenced in good faith is sufficient to sustain the prescription of 10 years, as plaintiffs are entitled to tack on to their possession that of their author, Rudolph Langermann, a possessor in good faith. Mala fides superveniens Barrow v. Wilson, 38 La. Ann. 209; Leduf v. Bailly, 3 La. Ann. 8; McGowan v. Laughlan, 12 La. Ann. 242; R. C. C. art. 3493.

non nocet.

It is true that the rights of August Rudolph Langermann, plaintiff in petitory action, and defendant herein, came into being in January 1915, when his father married the second time. It is also true that the prescriptive period was running during this time; yet he remained quiet and inactive for more than five years after the accrual of his alleged rights. It was only when he was forced to defend this suit brought by plaintiffs that he asserted for the first time, and too late, any adverse claim to the property in controversy.

By the WHOLE COURT.

LAND, J. Article 1753 of the Revised Civil Code provides:

children of his or her preceding marriage, he "If a person, who marries a second time, has or she cannot, in, any manner dispose of the property given or bequeathed to him or her by the deceased spouse, or which came to him or her from a brother or sister of any of the children which remain.

"This property becomes, by the second marriage, the property of the children of the preceding marriage, and the spouse, who marries again, only has the usufruct of it."

That this acle clearly refers to the disposition of property bequeathed to a surviving spouse, and which is in his or her possession at the date of the second marriage, is made clear by the clause in the second paragraph of the article, "and the spouse who marries again, only has the usufruct of it." It would be legally impossible for a surviving spouse, after the second marriage, to

The plea of prescription of 10 years is have the usufruct of property which he had therefore maintained.

For the reasons assigned, the judgment appealed from is annulled, avoided, and reversed, and it is now ordered, adjudged, and decreed that the reconventional demand of defendant August Rudolph Langermann, for a two-thirds interest in the property in controversy and for rents and revenues from same, be and the same is hereby rejected and dismissed. It is further ordered, adjudged, and decreed that there be judgment in favor of the plaintiffs liquidators of the Prudential Savings & Homestead Society maintaining the plea of prescription of 10 years acquirendi causa and decreeing the said liquidators to be the true and lawful owners of the property described in their petition as "a certain lot of ground, together with the buildings and improvements thereon, and all rights, ways, privileges, servitudes and advantages thereunto belonging, or in any wise appertaining, situate in the

disposed of before the second marriage, and which had been bequeathed to him by the wife of the preceding marriage.

The clause in the second paragraph of said article, "and the spouse who marries again, only has the usufruct of it," also plainly indicates that, prior to the second marriage, the surviving spouse had acquired by the bequest made to him by the wife of the preceding marriage both the ownership and the usufruct of the property so bequeathed, and that the ownership became forfeited by the second marriage, leaving to the surviving spouse "only the usufruct of it."

We therefore have under said article, prior to the second marriage, both the ownership and the usufruct vested in the surviving spouse of the property bequeathed to him, and his immediate dominion over it. Where, then, is the legal impediment to his disposing of the property, before the second marriage, and to his giving to his vendee a

(100 So.)

The property acquired under this article wise looks with disfavor upon forfeitures. by a child of the preceding marriage does As the penalty under article 1753 of the Renot come to him from the testamentary dis-vised Civil Code is imposed solely upon the position of his mother in favor of the sur- spouse contracting the second marriage, it is viving father. Mrs. Langermann had the clear clear that it was never intended that innolegal right at her death to bequeath to her cent third persons, purchasing the property surviving husband the disposable portion of from the surviving spouse prior to the sectwo-thirds, as her will reserved to her son, ond marriage, should be affected by any forthe only heir, his légitime of one-third. feiture of the ownership of the property acThe title derived by Langermann, Sr., un-quired by them. The very nature of a pender the will of his deceased wife to two-alty is that it should be imposed upon the thirds of this property, was no less perfect offender alone and that it should not operate and unconditional at the time, than that de- retroactively. rived by the son under the same will.

Had Langermann, Sr., died after disposing of this property to the homestead association, and before his second marriage, it is obvious that a valid and legal title would have vested in the association and that the son would have no claim whatever as to this property from the succession of his father.

[1] It is not by virtue of any right of inheritance from the mother that a son of the preceding marriage can claim the ownership of the property bequeathed to his father, but it is solely because of the second marriage, solely because of the operation of law, that he becomes the owner of such property.

The "second marriage" referred to in article 1753 of the Code is neither a suspensive condition nor a resolutory condition, because there is no antecedent right, or title, or contract to which such condition can be attached. This interpretation is made irrefutable when it is remembered that article 1753 of the Revised Civil Code is an enactment in the nature of a penal statute, and that the second marriage operates as a forfeiture of the ownership of the property by the husband on his marrying again.

Ex post facto legislation by the states is prohibited under the federal Constitution, and the raison d'étre of article 1753 of the Code clearly shows that it is not retroactive in its operation, but was intended to punish in the future the spouse contracting a second marriage by forfeiting the ownership of of the property bequeathed and in his or her possession at the date of this second marriage, which under the law of Spain was considered an offense against the memory of the deceased spouse.

Article 1753 of the Code was not intended, therefore, primarily to protect, as against the stepmother or the stepfather, the rights of the children of the first marriage as to their patrimony. Whatever interest accrues to them in this respect flows only incidentally from the penalty of forfeiture incurred by the second marriage. They have no antecedent title by virtue of inheritence from their deceased mother or father, as the surviving spouse, before marrying a second time, is vested with such title.

In the Succession of Hale, 26 La. Ann. 202, the court said:

Article 1753 of the Revised Civil Code "was In the case of Verret v. Bourgeois, 15 La. incorporated into our system of laws from the 111, 112, this court said:

"This provision [article 1753, old Code, article 227] is evidently taken from the 15th law of Toro, which provides that 'In all cases in which women shall contract a second marriage, they shall be bound to reserve to the children of the first marriage the property they shall hold from the first husband, or shall aave inherited from any of the children of the first marriage. The same obligation to reserve shall exist for men who marry a second or third time, so that whatever the law ordains as to women marrying a second time, applies to men who marry a second or third time.

"This obligation to reserve, which was imposed as a penalty on the surviving spouse who contracted a second marriage, was restricted by several exceptions, which we find laid down in the writers; one of them was, that this obligation to reserve did not extend to property acquired by the children of the first marriage otherwise than by inheritance from the deceased father or mother, whose memory was supposed to have been offended against by such

Roman law and the Spanish Codes. It is not found in the Napoléon Code, but is derived from the Justinian Code. De secundis nuptiis. Title 1, Novellæ Constitutiones, 22, chapter 23 [which is translated into English as follows]: 'But if the law discover that children and offspring are in this manner dishonored [by a second marriage], then it deprives her, the mother, as to the matter of ownership of all munificent donations coming from the husband to her, leaving to her only the usufruct. And generally it is said that every form of ownership leaves her in those things which came to her by a former husband.'”

*

*

The wife marrying a second time, and being thereby deprived of the ownership, could not be left "only the usufruct," unless she was in possession of the property as owner at the date of the second marriage.

It is therefore clear that not only under the original law as it existed in the Novellæ Constitutiones of Justinian, but also under the 15th law of Toro of the Spanish Code, the forfeiture of ownership was a penalty for the [2, 3] It is elementary that penal statutes second marriage. This construction must must be strictly construed. The law like- | necessarily be attached to article 1753 of our

second marriage," etc.

Code, which is based upon these ancient | forfeiture, becomes the property of the chillaws. That the penalty of forfeiture of ownership should be inflicted upon innocent purchasers of property prior to the second marriage, prior to the commission of the offense entailing such forfeiture upon the wife or husband, marrying a second time, is not only unnatural and unjust, but is clearly contrary to the spirit of the Justinian Code, the Spanish Code, and our own Code, in neither of which do we find any language referring to or affecting the rights of third persons, prior to the second marriage.

(100 So.)

*

"The condition being complied with, has a vendee, but the property reverts back to the retrospective effect to the day that the en- vendor, in consequence of the vendee's failgagement was contracted." R. C. C. art. 2041. ure to pay the price, as if no sale had taken "Obligations are extinguished: By place. Chretien v. Richardson, 6 La. Ann. 2; Fulton v. Fulton, 7 Rob. 75; Power, Tutrix, v. Ocean Ins. Co., 19 La. 28, 36 Am. Dec. 665.

the effect of the dissolving condition," etc. R.

C. C. art. 2130.

Under these articles of the Civil Code, this court has held that the fact that the property had passed from the vendee into third hands in no manner abridges the right of the vendor to sue for the rescission of the sale for the nonpayment of the price. Stevenson v. Brown, 32 La. Ann. 462; Ragsdale et al. v. Ragsdale et al., 105 La. 405, 29

South. 906.

[4] The second marriage of Langermann, Sr., in the year 1915, therefore, did not have the legal effect of divesting the building association of the title to this property, although such title stood in the name of Langermann, Sr., at that date, and until the year 1919, when, finding himself unable to pay for the property, he made a dation en paiement to said association.

The title of Langermann, Sr., to this prop-
He had not paid his

Therefore, if Langermann, Sr., had sold this property to his son, after the second marriage in 1919, instead of making a da-erty was defeasible. tion en paiement to the building association, said association could have rescinded the sale for nonpayment of the purchase price, while the property was in the hands of the son, a third person.

vendor, the building association, the purchase price. The dation en paiement made by him can be viewed, under these circumstances, in no other light than as a voluntary retrocession, in lieu of a compulsory en

In the Ragsdale Case, above cited, we said:forcement by suit of the resolutory condition

"The underlying principle is that until the vendee pays the purchase price he holds by a defeasible title only, and all who deal with him are equally affected. Further, that the rescission of a contract of sale for a cause going back to the origin of the agreement [such as for want of payment of the price] is not considered as an alienation, * * but rather as a return to the former ownership, which has not ceased to exist, or was only suspended. Insurance Co. v. Packwood, 9 La. Ann. 87; 4 Toullier, Contracts et Obligations Conventionnelles, Nos. 539, 548, 550; Mortee v. Roach's Syndic, 8 La. 83; McKenzie v. Bacon, 41 La. Ann. 9, 5 South. 640."

Article 2045 of the Civil Code declares that the dissolving condition, when accomplished, operates the revocation of the obligation, and places matters in the same state as though the obligation had never existed. When the condition happens, therefore, the property returns to the vendor free of all alienations and incumbrances imposed by the vendee. Stevenson v. Brown, 32 La. Ann. 461; George v. Lewis, 11 La. Ann. 656; Johnson v. Bloodsworth, 12 La. Ann. 699; Thompson v. Kilcrease, 14 La. Ann. 340; George v. Knox, 23 La. Ann. 355; Templeman v. Pegues, 24 La. Ann. 537.

implied in the sale made to him by the building association.

The sale of this property by Langermann to said association took place in the year 1910, and the resale by the association to him was made during the same year.

Under our view of the law, as announced in our analysis of the Zeigler Case, the sale of Langermann, Sr., to the association, prior to his second marriage, was legal and valid. At that date, the son of Langermann, Sr., defendant in this suit, had no right, title, or interest in or to this property, inchoate or otherwise, as the second marriage had not taken place. Langermann, Sr., at the date of the sale by him to the building association, therefore, held the property in controversy in perfect ownership. As the building association in this case holds by virtue of its legal and valid title from Langermann acquired in 1910, and not under any title from him after his second marriage, plaintiffs are entitled to be decreed the true and lawful owners of this property.

It therefore becomes unnecessary for us to pass upon the plea of prescription of 10 years acquirendi causa tendered by plaintiffs.

For the reasons herein assigned, our former decree is reinstated and made the judgment of the court.

The vendor may enforce the resolutory condition by suit to rescind the sale, or the purchaser may do voluntarily what he can be compelled to do by suit; i. e., he may make a voluntary retrocession of the prop-in the decree.

O'NIELL, C. J., and ST. PAUL, J., concur

erty to the vendor. In either case, the ven- ROGERS, J., concurs in decree for reasons dor does not acquire a new title from the set forth in opinion on rehearing.

(156 La.)

No. 24383.

GRACE REALTY CO. v. PEYTAVIN PLANT-
ING CO., Inc., et al.

(Supreme Court of Louisiana. March 31, 1924.
Rehearing Denied by Division C.
May 5, 1924.)

(Syllabus by Editorial Staff.)

1. Brokers 57(2)—Broker entitled to proportion of agreed commission where principal himself has consummated transaction for less than price fixed.

Where broker employed to sell property at given price for agreed commission has opened negotiations with purchaser, and principal, without termination of agency or negotiations so commenced, concludes sale for less sum than price fixed, broker is entitled to ratable proportion of agreed commission.

2. Brokers 56(3)-Purchaser could not terminate relations and protect vendor.

As prospective purchaser with whom broker was negotiating had nothing to do with commissions to be paid by vendor, it was not in his power to terminate his relations with the broker just before consummation of the sale in order to protect the vendor from liability.

Peytavin plantation, situated in the parish of Ascension.

Plaintiffs allege that they entered into a verbal contract with the Peytavin Planting Company, Inc., and Jacob Lebermuth on or about November 5, 1919, for the sale of this plantation for the sum of $106,800 with the movables, or for the sum of $82,400 without the movables, and that plaintiffs were to reIceive as their commission for their services the sum of $2,400.

Plaintiffs' demand against Jacob Lebermuth was dismissed by the lower court, as

the evidence disclosed that he had no interest in this plantation, and was merely representing defendant company as agent in the sale of the place. The price of the plantation at $106,800 is also eliminated from the case, as the property was sold by defendant company for $80,000; all corn, hay and molasses on the place being included in the sale.

The defendant company offered this property at $80,000 net, reserving the right to sell, and plaintiffs were to receive a commission of $2,400 in addition to this price, or 3 per cent. on the net price. The agent's contract was not for any fixed or definite period. The sale was made to O. Robert & Bros., through the efforts of Ed. Grace and 3. Brokers 46, 55(1), 56(3) Principal's Albert L. Grace, members of plaintiff comright to sell without agent's intervention, pany. It is true that Jacob Lebermuth, stated. agent of defendant company, had endeav

Principal may reserve right to sell prop-ored prior to this sale, which was effected erty at fixed net price, and may deny broker November 25, 1919, to interest Omer Robert exclusive right of sale, and in such case may of said firm to purchase this place, but withsell property directly or through another agent, but cannot sell to prospective purchaser pro-menced about October 10, 1919. The negoout result. These negotiations were comduced by agent and deprive such agent of commission, either by discharging him or by silently ignoring his rights.

Appeal from Twenty-Seventh Judicial District Court, Parish of Ascension; Philip H. Gilbert, Judge.

Action by the Grace Realty Company against the Peytavin Planting Company, Inc., and another. Judgment for plaintiff, and defendant named appeals. Affirmed. Walter Lemann, of Donaldsonville, for appellant.

John Marks and A. N. Simmons, both of Napoleonville, for appellee.

By Division B, composed of Justices DAWKINS, LAND, and LECHE. Justice LECHE being absent, on account of illness, Mr. Justice ROGERS, of Division A, heard the argument and took part in the decision in the following case.

LAND, J. The Grace Realty Company, a commercial and real estate partnership, composed of Charles E. Grace and Albert L. Grace, have brought this suit to recover of defendants in solido the sum of $2,400, with legal interest from November 25, 1919, until paid, as a commission for the sale of the

tiations initiated by plaintiffs covered the period from November 5 to November 20, 1919. Through correspondence, visits, and otherwise, Omer Robert was induced by Albert Grace to make an offer of $70,000 for the property, which was declined, with the

statement that the property must bring $80,

000 net.

Albert Grace, after making this offer on the afternoon of November 20, 1919, left the residence of Lebermuth, and had proceeded but a short distance in his automobile, when he met Omer Robert and his brother in their car. Grace reported the result of his interview to them, and offered to return with them to the residence of the agent, but they declined, and replied that they would go alone and see if they could do better. The result was that the sale was closed for $80,000, with certain movable property included, and, without any notitication whatever by defendant company to Albert Grace, the agent, or without any opportunity whatever given to him to protect his commission by seeing his prospective purchasers before the sale. Albert Grace had not been dismissed as agent by defendant company, nor by his prospective purchaser, before this sale; although Omer Robert has attempted to construe his statement