
    McDonald v. Aubert.
    A promise to sell, ■when the thing sold and the price of it are agreed on, is so far a sale that it gives to either party a right to claim recta via, the delivery of the thing or payment of the price; hut the promise does not place the thing at the risk of the promissee, or transfer to him the ownership or dominion of it.
    Appeal from the court of the second district, for the parish of Lafourche Interior, the judge thereof presiding.
    [449] This case commenced by an order of seizure and sale, for the payment of $3,864; being the balance of a note given by the defendant in part payment of a sugar plantation, having eight arpents front on the Bayou Lafourche, with the depth of eighty, and twenty-one slaves.
    The defendant opposed the order of seizure and obtained an injunction prohibiting the sheriff from proceeding any further, on account of various encumbrances and mortgages existing on the land and slaves sold, which he specifies. He expressly avers, that the plaintiff hound himself to make him a clear and unencumbered title to the premises, hut that he has failed; and that he also concealed several mortgages existing at the time of sale. He prays that the plaintiff may he required to erase and cancel all the existing mortgages and encumbrances; and that in the moan time he give security and pay him $1000 for his trouble, vexation and expjnso.
    The particular facts on which the case tn • is are fully stated in the opinion of the court.
    
      The district judge perpetuated the injunction, and the plaintiff appealed.
    
      Beatty for the plaintiff and appellant.
    
      B. <?. Thibodecmw for defendant.
   Morphy, J.

delivered the opinion of the court.

The plaintiff sued out an order of seizure and sale, for part of the price of a plantation and slaves, sold to the defendant. The proceedings were enjoined on the latter on the ground that there were defects in his title and encumbrances on the property, which give rise to a just and reasonable fear on his part of being disquieted in his possession by an action of mortgage or of revendication. There was below a verdict for the defendant, whereupon a judgment was rendered making the injunction perpetual. The plaintiff appealed.

On the 1st of April, 1835, Benedict & .Stanfield, the immediate vendors of plaintiff, purchased two arpents out of the eight sold by them to [450] plaintiff, and by him to defendant, from Estival Baudoin, for the sum of $3250. Previous to this sale, to wit, on the 19th of February preceding, the said Estival Baudoin, jointly with Sylvain Baudoin and Jean Baudoin, had entered into an agreement with Benedict & Stanfield, by which they had promised and bound themselves to sell and make over to them within a delay not exceeding thirty days,- their three adjoining plantations, measuring together eight arpents front to the Bayou Lafourche; the promisees obligated themselves to purchase the three tracts for $13,000, to be paid cash down at the passing of the sale to them ; and as an earnest they paid a thousand dollars, which sum, it was agreed, should be forfeited, if they did not comply with their promise to purchase and pay within thirty days from the date of the agreement. The wife of Estival Baudoin died on the 23d of March following, leaving several heirs ; the two arpents subsequently sold by him to Benedict and Stanfield, are proved to have been acquired during his marriage with the deceased.

Under these facts the defect complained of in plaintiff’s title, is that the sale of these two arpents by Estival Baudoin after the death of his wife, conveyed only his undivided half of the property which had belonged to the community, and that the rights of her heirs to the other half have never been legally divested.

It is contended on the part of the appellant, that under articles 2437 and' 2488 of our Code, the promise to sell amounted to a real sale, to which a resolutory condition was attached by the joining of an earnest, but that the' parties not having taken advantage of this condition, the sale became absolute, and that its validity cannot be affected by the subsequent death of the vendor’s wife.

We cannot concur in this view of the agreement entered into by these parties on the 19th of February, 1835. We understand article 2437 to [451] mean, that a promise to sell, when the thing to be sold and the price of'it are agreed upon, is so far a sale that it gives to either party a right to claim recta via, the delivery of the thing or payment of the price; but such a- promise does not place the thing at the risk of the promisee, nor does it transfer to. Mm the ownership or dominion of it. If by consent of both parties a promise to sell is cancelled, such an agreement could not be viewed as a retro-cession of the property; and third persons having a general mortgage recorded against the promisee would have acquired no right or lien on the same, because it never belonged to their debtor. Troplong, Yente, vol. 1, No. 130 ; Pothier, Yente, No. 481; Toullier, vol. 9, No. 163. In this ease the promise to sell is made in terms and under conditions which exclude all idea of an actual sale. It was to be executed at a future day and within a given time, and an earnest was paid by the promisees. Each party had the right of receding from the agreement, the promisees by losing the earnest money, the other party by returning the double of its amount, La. Code, art. 2438. But besides the promissors intended to be bound by this agreement only during thirty days, neither party having called for its execution within that time, it became null and void. Troplong, Yente, vol. 1, No. 134; Pothier, Yente, No. 480. Ear from transferring the property to Benedict & Stanfield, this promise could not even have been enforced against Estival Baudoin as an absolute obligation to sell, because although an aggregate amount of $13,000 stipulated for the eight arpents, no separate price was fixed or agreed to for the two arpents, which were his individual property; he was divested of his ownership then, only by the sale of the first of April, after the death of his wife; the interest of his children he could not and did not convey by that act; the defendant, Aubert, is therefore entitled to be secured against eviction on account of their rights.

[452] As to the encumbrances on the land, they were all made known to defendant, except a judgment recorded in favor of one Eggleston for $247, which was not disclosed at the time of the sale, having been overlooked by the parish judge, who drew up the conveyance to defendant. The evidence renders it probable that this judgment has been satisfied, but is not such, however, as should preclude defendant’s right to require security against this mortgage.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be so amended, that the injunction sued out by defendant, instead of being perpetual, be maintained until plaintiff shall give security in the sum of $1900, according to article 2535 of the Louisiana Code, the defendant and appellee paying the costs of this appeal.  