186 La. 1088

#### PATTON’S HEIRS v. MOSELEY et al.

No. 33912.

Supreme Court of Louisiana.

Jan. 4, 1937.

On Rehearing March 29, 1937.

*773Herold, Cousin & Herold, of Shreveport, for appellants.

Goff & Goff, of Arcadia, for appellees.

ROGERS, Justice.

Plaintiffs, being the owners in possession of certain lands in Lincoln parish, brought this suit in jactitation against parties claiming ownership of undivided mineral rights in the lands. Wilson v. Pierson, 143 La. 287, 78 So. 561; Frost-Johnson Lumber Co. v. Salling’s Heirs, 150 La. 756, 91 So. 207.

Plaintiffs are the heirs of T. F. Patton, who, on October 1, 1925, and on December 10, 1925, sold the undivided mineral rights in dispute to R. O. Roy. On. May 1, 1935, Roy sold the undivided mineral rights, thus acquired to the Acme Land & Investment Company, Inc., of which he was the president and principal stockholder. On September 28, 1935, the Acme Land & Investment Company, Inc., sold the same rights to its four codefendánts, one of whom was a minor represented by her tutor.

This suit was filed on January 7, 1936, which was more than ten years after the execution of the mineral deeds by plaintiffs’ ancestor. As no attempt was made by 'the original purchaser or those holding under him to exercise the mineral rights, plaintiffs expressly set up that they were extinguished by the prescription of ten years liberandi causa.

The court below overruled the plea of prescription and dismissed plaintiffs’ suit, and plaintiffs have appealed from the judgment.

*774It is well settled that a sale or reservation of the mineral oil or gas in a tract of land constitutes a sale or reservation merely of a real right, or personal servitude', to go upon the land and explore for oil or gas and to possess and own such oil or .gas as may be produced; and such real right or servitude is lost by the prescription of ten years liberandi causa, if the owner of the right, being not the owner of the land itself, fails to exercise it for a period of ten years. Palmer Corporation v. Moore, 171 La. 774, 132 So. 229, and the authorities therein cited.

Therefore, the mineral rights conveyed by Patton to Roy have been extinguished by the prescription pleaded, unless some intervening circumstance has interrupted or suspended the running of the prescription. Defendants contend that such a circumstance is to be found in the minority of one of the four purchasers of the mineral rights from the Acme Land & Investment Company, Inc.; their contention being that, under the doctrine of Sample v. Whitaker, 172 La. 722, 135 So. 38, prescription ceased to run from the date of the’ minor’s purchase, and that such interruption operated not only in favor of the minor, but also in favor of her major co-owners.

Plaintiffs argue that defendants’ contention is not well-founded, because, first, it being unlawful to involve minors’ funds in speculative transactions, the transfer was void as to the minor and such title as the deed purported to transfer to her went directly to her tutor, and, secondly, that the deed upon which defendants rely 'was not a real transaction, but a pure simulation executed for the sole purpose of interrupting the running of prescript'ipn, and that for all' practical purposes whatever still exists of the mineral rights is Roy’s.

The testimony in the record, which was admitted over the objection of the defendants, satisfies us .that the purported sale by the Acme Land & Investment Company, Inc., to the defendants was a pure simulation. The .consideration recited in the deed is, “The. sum and price of Sixteen Hundred ($1,600.00) Dollars, cash, or its equivalent and other good and valuable consideration, the receipt of which is hereby acknowledged.” But the testimony shows that no cash, nor its equivalent, nor any other consideration passed between the parties ; and that the deed was executed under a collateral agreement, whether oral or in writing does not appear, that if the designated vendees could realize anything out of the sale of the property, or production therefrom, they would then pay Roy, the vendor, $1 per acre, together with one-sixth of all sales or production derived from the property. In other words, the defendants were neither to pay nor to be responsible for the alleged purchase price, which was to be derived solely from the property itself.

Looking to the private agreement of the parties to ascertain their intent and purpose, we have no difficulty in' determining that there was no sale of the mineral rights. If nothing is realized by the alleged vendors from the sale or production .of the proparty, admittedly, they will pay nothing and owe nothing to their alleged vendor.

In the contract of sale it is essential that the price be certain—fixed and determined between the parties. Civ. Code, arts. 1764, 2439, 2464; Wise v. Guthrie, 11 La.Ann. 91; Prude v. Morris, 38 La.Ann. 767; Pulford v. Dimmick, 107 La. 403, 31 So. 879.

While the validity of a sale does not depend on a price being fixed with certainty in the act, it does depend on a certain price being agreed upon by the parties or left to the arbitration of a third person able and willing to fix it. Walker v. Fort, 3 La. 535; Pulford v. Dimmick, 107 La. 403, 31 So. 879; Hibernia Bank & Trust Co. v. McCall Bros. P. & Mfg. Co., 140 La. 763, 73 So. 857.

In the agreement between the parties, the essentials of a sale were entirely lacking. There was not only no price agreed to be paid, but also no certainty as to the payment of what was agreed on, the payment being wholly conditioned on the apparent vendees’ realizing out of the property itself.

Neither was the agreement a giving in payment or a donation. It was a mere arrangement among the parties to preserve the mineral rights held by the alleged vendor from, the running of prescription, using the minor’s name for that purpose. If such a practice were sanctioned, it would enable the owner of a servitude to perpetuate the servitude without ally action on the landowner’s part by the -simple device of under the guise of a sale placing a small undivided interest therein in the *775•name of a minor before any prescriptive period would elapse.

We think the evidence objected to was properly admitted.

Replications under our law are not admissible, and all allegations of an answer are open to any objections of law or fact without special plea. If the defendant is surprised, the proper remedy is a continuance or a new trial. Richard v. Perrodin, 116 La. 440, 40 So. 789; Parish Board of School Directors v. Alexander, 125 La. 808, 51 So. 906; Young v. Morgan City, 129 La. 339, 56 So. 303; Webre v. Christ, 130 La. 450, 58 So. 145.

Plaintiff may urge orally at the trial without otherwise pleading any objections to the title set up in defendant’s answer. McMaster v. Stewart, 11 La.Ann. 546.

A case similar in principle to the present case is Abshire v. Lege, 133 La. 254, 62 So. 667. There the plaintiff in a peti-tory action set up title which she claimed to have acquired from the succession of her husband, but did not impugn the validity of the sale under which the defendant claimed. The court held that when the defendant set up this sale in answer, the plaintiff had the right to urge against it every objection of law or fact which she might have without pleading the same, replication not being allowed under our law.

Plaintiff as a third person prejudiced by the pretended deed of the Acme Land & Investment Company, Inc., to the defendants has the right to attack it as a simulation and to ask that as to plaintiff it be ignored. Smith v. Mechanics’ & Traders’ Bank, 6 La.Ann. 610; Sere v. Darby, 118 La. 619, 43 So. 255.

In Smith v. Mechanics’ & Traders’ Bank, it was said on rehearing, 6 La.Ann. 610, at page 628, that:

“The law abhors simulation; and if there is a point settled by our jurisprudence, more conclusively than any other, it is, that except between the parties to it, it has ho existence, and that any third person having an interest, may at all times and in all forms of action, call upon the court to disregard it, and adjudge his rights according to the truth which it disguises.”

As we find that the deed relied on by defendants to interrupt the prescription of ten years liberandi causa pleaded by plaintiffs is a mere simulation, it cannot affect plaintiffs’ rights and as to plaintiffs must be disregarded. Therefore, it is not necessary for us to pass upon the legality of the purported investment of the minor’s funds.

For the reasons assigned, the judgment appealed from is annulled, and it is now ordered that there be judgment in favor of the plaintiffs M. S. Patton, Mrs. Maggie Patton, H. E. Patton, Margaret Thurman, Laura Caruthers, and J. D. Caruthers, and against the defendants Acme Land & Investment Company, Inc., J. M. Mosely, R. F. Hassell, J. R. Goff, and H. D. Butler, ordering said' defendants to cease and desist from slandering the titles of said plaintiffs, and perpetually .enjoining said defendants from claiming of asserting any right, title, or interest in and to any minerals or mineral rights in and under the property described in plaintiffs’ petition. Defendants to pay all costs of suit.

FOURNET, J., concurs in the decree.

On Rehearing.

HIGGINS, Justice.

We granted a rehearing in this case, because the defendants complained that certain questions raised by them were not answered. In defendants’ brief, it is stated that the sole issue before the court was whether or not the plea of prescription had been properly overruled by the district judge and the plaintiffs’ suit dismissed. We concluded that the other issues had been abandoned. However, defendants complain that they had no idea of abandoning these points. A rehearing was therefore granted for the purpose of considering them.

The plea of estoppel filed' by the defendants is predicated on the ground that plaintiffs’ author in title warranted the grants or sales of the mineral rights of the lands in question, and therefore they cannot attack these grants or sales to the defendants or their authors in title. It is clear that if Mr. T. F. Patton, from whom the plaintiffs had inherited, had lived and occupied the land in question adverse to the defendants, and they had not attempted to exercise their real right or servitude to explore the land for gas and oil, that the servitude would have been lost by prescription liberandi causa of ten *776years. If this is true with reference to the plaintiffs’ authors in title, it is equally clear that plaintiffs are entitled to plead prescription against the defendants, because of their failure to exercise the servitude during the ten years that plaintiffs and their authors in title occupied and possessed the land. In short, the plea of prescx'iption is based upon the inaction of the defendants who had it in their power at any time to interrupt prescription by properly asserting their rights. They admit they never attempted to do so. The trial judge therefore properly overruled the plea of estoppel.

Defendants contend that the trial judge erred in permitting the introduction of evidence before the case was at issue on the merits. The trial judge referred the plea of estoppel to the merits and granted the defendants every opportunity to 'answer. The defendant Butler individually answered, disclaiming any title to the property and denying that he had in any way slandered the plaintiffs’ title. Upon the refusal of the other defendants to file an answer, although requested to do so by the plaintiffs and the court, the trial judge treated the case as if the plea of estoppel were an answer and that the defendants admitted that they were claiming ownership. The defendants were given full opportunity to introduce any evidence they deemed fit to sustain their position and they did introduce the various documents upon which they relied. The ruling of the district judge was correct.

Defendants argue that prescription was interrupted by the action of the plaintiffs in occupying the land and subsequently granting mineral leases to other parties. Defendants made no attempt to show that the plaintiffs at any time refused them permission to go upon the land and explore it for minerals. There is no evidence to show that defendants were interfered with by the plaintiffs in any attempted exercise of their rights. It does not appear that plaintiffs placed any obstacles in their way. Defendants’ failure to avail themselves of their rights to explore for oil and gas during the ten year period was purely voluntary. The only effort defendants made to prevent prescription running was to make the simulated sale three days before the ten-year period had elapsed. Again, we agree with our learned brother below in his ruling.

We note that the name of the Acme Land & Investment Company, Inc., appears in our decree. This company was dismissed from the suit on an exception of no cause of action based on the fact that plaintiff alleged that the company had sold its interest to the minor, Ruth Eugenia Butler, et al. Plaintiffs did not appeal from that judgment and therefore the company passed out of the litigation and its name should not have been included in our decree.

The defendant H. D. Butler, individually, in his answer disclaimed any interest in the property and therefore he likewise eliminated himself from the case. His name is also included in our decree. His name should not appear individually but as the tutor of the minor, Ruth Eugenia Butler.

In all other respects, our original opinion and decree are correct and the two in-advertences above mentioned will be corrected.

For the reasons assigned, it is ordered, adjudged, and decreed that our original judgment is reinstated with an amendment to our decree eliminating the name of Acme Land & Investment Company, Inc., and qualifying the name of H. D. Butler, as tutor of the minor, Ruth Eugenia Butler; defendants to pay all costs of court.