
    No. 9679.
    Heirs of Allen Castle vs. Mrs. E. S. Floyd et als.
    1. An heir, or tho transferee of an heir, acquires the right the decedent possessed, to euo for the resolution of a sale for the non-payment of tho purchase pricej but same is necessarily restricted to the interest of such heir or transferree.
    2. A right to sue for the enforcement of a vendor’s lien, is different from' that to sue for tbe resolution of a sale ,* and the former is not an auxiliary of the latter. This right does not pass to tho purchaser of the vendor’s notes, unless there bo a special contract to that effect. M
    3. neither the heirs of a deceased person nor the transferree, can sue for tbe resolution of a sale until previous tender has been made of the outstanding purchase notes, and such part of the price as may have beeu paid by the purchaser.
    Such a tender is a condition precedent to the institution of the suit.
    APPEAL from the Sixteenth District Court, Parish of St. Helena* Eernan, J.
    Chas. E. Lea for Plaintiffs and Appellants:
    Actions to resolve the sale for non-payment of price prescribe only in ten years. And this term of prescription bogins from maturity of first instalment, -when the piice is to be paid, in instalments. 14 Ann. 340 ; 23 Ann. 355.
    Minors cannot bo prescribed against, except in cases provided by law. C. C. 3522; 33 Ann. 769.
    In actions of resolution it is not necessary to put defendant in default. 28 Ann, 582, 740,
    Tho vendor returns the portion of the price paid, and the vendee returps the thing with it» ' revenues.. 14 Ann. 340 ; 28 Ann. 584, 741.
    Prescription against tbe heirs was suspended during their minority and commenced to run from the date of their respective majorities. C. C. 3522.
    The resolutory condition creates h right not personal but heritable and transferable. ' C. C* 491, 2449.
    
      The right to resolve the sale for non-payment of price, is a distinct and independent right from that of enforcing payment. 24 Ann. 5.17; 12 Ann. 701.
    A party will not be permitted to shift liis position to a contradictory one in order to defeat the action of tho law. 3 Ann. 18 ; 2 Ann. 209 ; 18 Ann. 141; 28 Ann. 460.
    
      Marr & Kemp ou the same side:
    1. If tlio buyer does not pay tho price of sale, the seller may sue for a dissolution of tho sale. It. C. C. 2591.
    2. In public sales the adjudication is the completion of tho sale, the purchaser becomes tbo owner of the article adjudged and the contract is from that time subjected to tho same rules which govern the ordinary contract of sale. Li. C. C. 2608.
    3. Where a purchaser at a judicial salo of property of minors fails to pay the price, the minois may sue for a dissolution of tho sale; Jones vs. Crocker, 1 Ann. 440.
    4. Tho vendor of a tract of land may enforce the resolutory condition against a third purchaser from his vendee. L. Bourgeois vs. L. Bourgeois, 23 Ann. 757; B. C. C. 3301. Stevenson vs. Brown, 32 Ann. 461.
    .5. Non-payment of the price constitutes a resolutory condition in the centi act of sale and its effect is in no manner affected by tho fact that the vendor has failed to preserve his privilege or mortgage by registry. 32 Ann, 461, Stevenson vs. Brown; 12 Ann. 694, Johnson vs. Bloodworth.
    .6. The action in resolution of a sale is one in revendication of the tiling. Tho accomplish meut of tho condition giving rise to tho action has retroactive effect to the day of sale things are,put in tho same condition as though the sale had not been made. B. C. C. 2041; Stevenson vs. Brown, 32 Ann. 461; Johnson vs. Bloodworth, 12 Ami. 699; 11 Ann. G54, George vs. Lewis ; Thompson vs. Kilcroyse, 14 Ann. 340.
    
      'l. In actions on tho resolutory condition no putting in default is necessary; they are not actions for damages for violation of a contract. Aymor vs. Delman, 28 Ann. 582.
    8. The resolutory condition must not be confounded with the vendor’s privilege. Tho former is not an appendage of the latter. Johnson vs. Bloodworth, 12 Ann. 699 ; George vs. Lewis, 11 Ann. 654.
    9. Tho prescription against the action of resolution of contracts is ten years, commencing from tho maturity of the price in case of contracts of sale. Jones vs. Crocker, 1 Ann. 440: It. C. C, 3544; George vs. Lewis, 11 Ann. 654.
    10. Minors and persons under interdiction cannot be prescribed against except in the cases prescribed by law. Hooper vs Purse, 13 Ann. 340 ; 6 Ann. 109 ; B. C. C. 3522.
    . dl. Proscription not completed at the ancestor’s death is suspended not interrupted. Bowls ‘ vs. Bowls, 6 Ann. 695; Smith vs. Gibbons, 6 Ann. 684.
    12. The right to exercise the resolutory action in cases of sale is transferable, and would pass by a sale of the vendor's right to the property by him previously sold and to which the resolutory condition was attached, this right is not personal to tho vendor. II. C, C. 2449, 491, 2642; Torregano vs. Segura, 2 N. S. 159.
    
      M. A. Striclcland, T» C. W. JEIllis and J. Wilson for Defendants and Appellees:
    1. The right to dissolve a sale for the non-payment of the purchase price is strictly personal to the seller and cannot be transferred or alienated. Swan vs. Gayle, 24 Ann. 502-; Chamblais vs. Miller, 15 Ann. 713.
    2* The resolutory actiou is a personal action and prescribed by ten years from the first default in the payment of the parchase price. C. C. 3544, 11 Ann. 654, and cases cited,
    
      Z. The prescription of personal actions is not suspended by minority, 24 Ann. 211, and if it is, this suspension is personal to tho minor, 6 Ann. 684, and does not pass to his transferrees and cannot be pleaded by them.
    
      
      4. This action grows out of proceedings in tho matter of the minority and tutorship of plaintiffs, and is prescribed by four years O. 0. 302; 6L. 161; 19 Ann.149. This prescription against one of the plaintiffs runs from the date of her emancipation. C. 0. 385 12 Aim. 155; Proctor vs. Hebert, 36 Ann. 250. In computing prescription against tho rights of the deceased sister, the prescription which accrued against her must be added to tho prescription which was run against plaintiffs. Smith vs. G-ibbon, 6 Ann. 684. Tho defendant has the right to plead these prescriptions. O. C. 3466; 8 Ann. 504; 19 Ann. 149
    -5. Good faith is always presumed. C. 0. 3481, and when once commenced continues, O. C. 3482, recitals in a title will not destroy it. 7 Ann. 3. Defendant purchased from, those not only whom he believed to be the true owners, but who, in point of fact, were so. He is a purchaser in good faith, G. C. 503, 3451, and can owe no rent prior to suit, O. C. 508, 3453; 16 Ann. 290, and is entitled to his improvements. 27 Ann. 398.
    ►6. Minors’ property and rights may be alienated or changed by the advice and consent of a family meeting, C. C. 229, 339, and where the formalities of law have been complied with, they are the same as persons of age. G. G. 1868, 2231; 1 Ann. 236 ; 9 Ann. 428; 15 Ann. 148; 28 Ann. 299; 32 Ann. 956.
    7. Where one parts with his property upon the faith of judicial proceedings in matters of minority, he is protected by said proceedings. 1 H. 924, Ho. 13; 16L.120; 32Ann.954. Equity will regard as done what should have been done. 6 Ann. 91,117; 28 Ann. 100.
    ■8. Where notes, which are owing by the tutor to his ward, become due and exigible during the term of tho tutorship, they are considered in law as paid, as so much cash in tho hands of the tutor for which he is responsible as tutor, and which is secured by th© legal mortgages resulting from tutorship. Succession of Triehe, 34 Ann. 1148; Succession of Hebert, 27 Ann. 300 35 Ann. 546.
   The opinion of the Court was delivered by

Watkins, J.

Allen Castle died in the parish óf St. Helena in the ;year 1861, leaving a surviving widow and three children, viz: Florida, ■John Benjamin, and Nettie — all minors.

The widow qualified as their natural tutrix, and in that capacity administered the succession of ber deceased husband. During the minority of the children she intermarried with W. D. Floyd, without first •obtaining the consent thereto of a family meeting. Thereafter pro■ceedings were inaugurated for the partition of certain real estate of Allen Castle’s 'succession by lieitation. and public sale. W. D. Floyd became the purchaser upon the terms fixed by the order of court, viz: upon terms of credit, one, two and three years; and he executed his notes accordingly, with mortgage retained.

This partition sale occurred on the 8th of August, 1867.

The sundry notes were divided or partitioned between Mrs. Floyd .and her three children according to their respective interests, and in the proportion of one half to Mrs. Floyd, and to. each of the children •one third of one half.

Plaintiffs claim that these notes were never paid.

In 1871, Floyd sold the land to K. K. Thompson, who is now in pos•session.

In 1875, Florida Castle died intestate and without issue, and her mother, Mrs. Floyd, inherited one fourth of her estate, and her brother, John B., and Nettie, each one half of three fourths.

John B. Castle became of full age in 1881. In 1882, Nettie Castle married W. II. McClendon. In 1884, John B. Castle conveyed to Mc-Clendon all of his right, title, interest, claim and pretension in and to-the successions of his deceased father, Allen Castle, and his deceased, sister, Florida Castle.

In 1885, this suit was brought by John B. Castle and Nettie Castle, wife of W. II. McClendon, for the resolution of the partition sale, for-the non-payment of the purchase price by W. D. Floyd; and Mrs. E. S. Floyd individually and as tutrix for the minor children of herself and W. D. Floyd, now deceased, were made defendants; and also KK. Thompson,

Thompson excepted that John B. Castle had no interest in the suit,, having transferred his interest in the successions of his father and sister to W. II. McClendon; and further, that the plaintiffs’ petition discloses no cause of action.

Thereupon IVIcClendon offered to make himself a party, in lieu of John B. Castle, and by order of the judge a quo he was substituted in his place and stead, and annexed his title thereto, hearing date 29th of December, 1884. To this ruling the defendants reserved a bill of exceptions, on the ground that John B. Castle was now legally and rightfully a party to this suit — he having transferred all of his rights- and interests to McClendon antecedent to the institution of the suit— and, he never having been himself a party, no one could be substituted-’ in his place.

In our opinion the ruling of the judge a quo was erroneous.

This Court had recent occasion to decide same question just the-other way, in Barron vs. Jacobs, not yet reported.

John B. Castle had conveyed his interest to W. H. McClendon— Nettie Castle’s husband — antecedent to institution of this suit, and no-one could be called to take his place.

Nettie Castle was then the only plaintiff in tho suit when it whs. brought, and the question presented is whether the partition discloses-a cause of action for the resolution of the partition sale.

We entertain no doubt of the plaintiffs’ right to sue for the resolution of the partition sale, quite as well as of a salo under private signature. 1 Ann. 440, Jones vs. Crocker.

. There-is no question of the fact that the heirs of Allen Castle, at his-death, acquired his succession in the same state it was when he died-

The heirs of a deceased person are seized of his succession at the-very instant of his death, and the right of possession that the deceased? had, continued in them, with all of its defects and advantages-; the-change in the proprietor producing no change in the nature of his possession.

An interest in a succession may be disposed of at public or private# sale, and the purchaser takes the place of the heir whose interest is thereby conveyed.

In either case an heir, or the transferee of an heir, would acquire the right of deceased pro tanto only, to sue for the resolution of a sale his-ancestor had made, or of one made of his estate for the non-payment of the price.

That right would pass as any other asset of the deceased.

But we do not concede that it can be fairly deduced from that fact-that the simple indorsee of a note evidencing a part of the purchase-price would thereby acquire the seller's right to sue for the resolution#, of the sale.

We have been cited by plaintiffs’ counsel only to one case in which-it has been so decided, viz: Torregano vs. Segura, 2 N. S. 159. In that-case it was the security who was himself pex-sonally hound for the pay- • ment of the debt, who discharged it, and by virtue of his legal subrogation to all of the creditors’ rights, claimed the property by the resolutory action. Suffice it to say that he was not an indorser for valúe..

In our opinion the two remedies of the vendor — one for the enforcer ment of the contract and the other for the resolution of it — are diametrically opposed, in the very nature of things.

A suit to enforce the vendor’s lien is a.n affirmance of the contract £ while a suit for the .resolution of it must be preceded by the restitution of the purchase notes and-such part of'.the .price as shall have been paid to the vendee, and same is a condition precedent to'.-institution of the suit. 23 Ann. 354, George vs. Knox; 24 Ann. 537, Templeton vs. Pegues; 15 La. 76, Canal Bank vs. Copeland.

In 9 Ann. 84, Augusta Insurance Company vs. Packwood, it was said that “ to effect a rescission of the sale, so as to replace the parties in the same position as if a sale had never been made, the parties to the sale and rescission should be the same.”

In 7 Ann. 67, Leflore vs. Carson, the Court said: “If the sale from McDonald to Messrs. Payne is to be rescinded, this cannot be done without restoring the vendor and the vendees to their ox-igihal condition-The dissolving condition, says the Code, is that which, when accomplished, operates the revocation of the obligation, placing matters in the same state as though the obligation had not existed. * 'l' * IIow is Butler to replace matters in statu quo ? He is the mere holder of one of the notes. He is not the vendor, nor anything more than one holding partial rights of the vendor.”

R. C. C. 2561: “If the buyer does not pay the price, the seller may sue to rescind the sale.”

C. N. 1654: “If the purchaser does not pay the price, the seller may •demand the annulment of the contract.”

C. N. 1692: “The sale or cession of a credit comprises the accessories ■ of the credit, such as security, privilege, and mortgage.”

The “sale of a credit” — one of the purchase notes — passes all of the securities and means of its enforcement; but the right to resolve the • sale for the non-payment of the price — “credit”—is necessarily inherent in the seller, or his heirs.

In 12 Ann. 699, Johnson vs. Bludworth, the Court said: “But it is impossible to confound the resolutory condition with the vendor’s privilege. The former is not a mere appendage of the latter.”

In Swan vs. Gayle, 24 Ann, 503, the Court said: “ The action for the resolution of the sale implies and presupposes tlie renunciation of the right to demand the payment of tlie price.”

Again: “ Now, a right which cannot be exercised, so long as another light exists, cannot be the accessory of the latter.”

Again: “ He did not by buying the notes.take tlie place of Eilhiol in the contract of sale, else the purchaser of a negotiable note, given for the price of the property, would become the warrantor of the title to the property. A proposition which leads to such a conclusion ought not to be sustained by a court of justice.”

These conclusions appear to our minds almost irresistible.

We are of the opinion that the foregoing decisions are consistent with tlie object to be attained by the resolution of the contract, the restitutio ad integrum — the replacing of parties in the same situation they occupied before it was made.

While it is true this action descended to us from the Roman law, yet under that system of jurisprudence the resolution of a sale for the non-payment of the price could not bo demanded, unless there was an express stipulation in the contract to that effect; and when it was thus stipulated, the contract was void ab initio, if not fulfilled by the payment of the price.

Under our law the resolutory condition is implied in every commutative contract, and the failure of the vendee to pay the price only renders tlie contract voidable. 6 Ann 4, Chretien vs. Richardson; 15 La. 76, Canal Bank vs. Richardson; R. C. C. 2046.

We are inclined to the opinion that the right of resolution inheres in the seller, and feel satisfied that it does not pass to the simple indorsee of purchase notes, like security, mortgage and privilege, which are auxiliaries, for the enforcement not the resolution of the contract.

Even conceding the right of McClendon to have himself substituted for John B. Castle, as a party plaintiff, the plaintiffs’ petition discloses no cause of action for the resolution of the partition sale of the 8th of August, 1867, because the plaintiffs, when thus joined, only ask foi the resolution of the sale as to one undivided half interest. '

This is impracticable and cannot be done. Iiow can the plaintiffs restore the statu quo or bring about the restitutio ad integrum †

We think they cannot.

Suppose this Court should grant plaintiffs the relief prayed for and resolve the partition sale with respect to an undivided one-half interest, would not their one-half interest thus restored t.o them, as the heirs of Allen Castle, become at once subjected to the vendor’s lien, and mortgage securing the remaining purchase notes held by the defendant, Mrs. Floyd, the surviving wife of Allen Castle?

This Court so decided expressly in 23 Ann. 411, Stuart Hyde & Co. vs. Madame Suzette Buard, and we think correctly.

We prefer to follow the doctrine announced in 24 Ann. 503, Swan vs. Gayle. In our opinion, it finds support in other decisions we have cited ; though in that case the question was tioated as res nova. In so far as there may be any expression in the opinion of the court, in 1 Ann. 440, Jones vs. Crocker, indicating a contrary view, the same is overruled.

The opinion herein expressed on other questions, dispenses us from the necessity of considering the plea of prescription urged.

It is, therefore, ordered, adjudged and decreed, that the judgment of the court a quo be amended and that the demands of plaintiff for the rescission of the partition sale be rejected, and that all costs be taxed against the plaintiffs and appellants.

Concurring in Part.

Bermudez, C. J.

This is an action for the resolution of sales, on account of the non-payment of the price.

It is brought by one of the heirs of Allen Castle and by a transferree - of the interest of the other.

■ The averments are that two tracts .of .land belonging to the succession having been sold to effect a. partition, the notes furnished were «divided among the heirs and the widow, the property passing from -the adjudica tee to Thompson & Freeman, who are made defendants; that the failure on their part to pay the purchase price justifies a resolution of the sales. The widow is not a party plaintiff.

The defense is a denial of the pretensions of plaintiffs; specially that, by his purchase of the interest of one of the heirs in the price of sale, the transferree, in the absence of an express stipulation, did not • acquire the right to ask the resolution on the ground of non-payment •of the price of sale; that even then, the right of action is barred by-prescription.

; The right to. enforce the resolutory action in a contract of sale is -peculiar .to the civil law and has been so rarely exercised in this State, by others than the vendor, that only two cases directly present the -interesting question : whether the right is transferred to the purchaser ■ of the claim without an express assignment of it.

In Torregano vs. Segura, 2 M. N. S. 158, the plaintiff was the en'.dorser of a note given for the piico of slaves and having paid it, -claimed as subrogee to the rights of the vendor, the dissolution of the sale and delivery of the property to himself. The Court say: “The subrogation is of the right of the creditor, not against the debtor only but also against the securities, and like a transfer of the debt it in-eludes everything that is accessory thereto as securityship, privileges, -mortgages. The rescission of the sale is a means of securing the pay-ment which the vendor, the creditor of the price, has. This right is .an accessory of the claim and would pass by the sale or transfer of it. The subrogation has the same effect.”

Swan vs. Gayle, 24 Ann. 498, was an action by the endorsee of notes «representing the unpaid price of property and the Court at first held that the action was maintainable on the authority of the Torregano case supplemented by George vs. Lewis, 11 Ann. 654, where it was said the resolutory action is a concurrent remedy with a suit to enforce the vendor’s lien. But on rehearing, the ruling was reversed, and it was held by a divided court (two dissentients) that the right to dissolve ' the sale is not an accessory of the notes for the unpaid price, and does not pass to a third party by the transfer of them. And in this last «opinion was cited Citizens’ Bank v. Cuny, 12 Rob. 279, where the Court said, the vendor’s privilege gives the seller a right to the rescission of -the sale on the non-payment of the price, and he by transferring the ■ notes parted with the accessory rights which vested in the plaintiffs as the holders of the notes. This was cited only to observe that it, as well as the passage quoted already from the Torregano case, was said •only arguendo and was not authoritative.

The expressions in both cases are pertinent and necessary to the •decisions, with such contrariety of opinion it is obvious that the question cannot be considered as settled by our own jurisprudence. As art. 2645 of our Kevised Civil Code is identical with art. 1692 of the ’Code Napoleon, it is natural to turn to the French commentators for light and guidance.

They are found differing as much as this Court.

Duranton holds that the resolutory action is not comprehended in a general cession, but only passes, by a special cession of it and cites "Sirey, Delvincourt and Dalloz. Code Civil Annoté, art. 1692, p. 749. However Dalloz does not support that dictum. On the contrary ho ¡affirms that, if the cession is general, without any restriction, it will comprehend the action in resolution unless it appears that the intention of the parties is to exclude it. This is his language; — “ Si le ■vendeur a cédé en termes généraux tons ses droits et actions contre Tacquéreur sans rien specifier mais sans faire non plus aucunc restriction, la cession comprend les actions en nullitó et en rescisión ou Tésolution, á moins qu’il n’apparaisse, d’aprés les circonstances, que l’intention commune des contractants a été d’exclure ces actions de la • cession. Paris Ed. 1874. Com. art. 1692 C. H.

Marcade argues with his usual dogmatic energy that the right to •dissolve the sale for non-payment is not even an accessory of the right to demand payment of the price and of course does not pass by a transfer of the notes that represent the price. Laurent opens his discussion with the statement that the question is very much controverted and there is some doubt about the true solution of it, but he adopts the •opinion that the right to dissolve the sale is not comprised in the ■cession of the obligation for the price. Authors are divided, he says, -as well as jurisprudence and the question is not settled. Droit Civil, to. 24, p. 529 § 535.

On the other band, Toullier says when the terms of the cession are -general and absolute it is impossible to admit any exception and all ■rights are transmitted to the cessionary, and as an example he adds that the right of a seller to demand the resolution of the sale on default of the payment of the price is ceded to him to whom he sells the •credit. Droit Civil Francois, to. 2 § 222, pp. 274-5.

So also Kogron concludes with reason that a cession of .the credit •that represents the unpaid price of an immovable includes the right to demand the resolution, of the sale. Com. art. 1692 C. N., and Solonis of the same opinion. Sur la nullité, to. 1. $ 450, p. 311. Gilbert in his Codes Annotés, p. 809, art. 1692 C. N. says a- general cession comprehends the rescinding and rescissory actions, and besides Solon, cites-as sustaining that opinion Dnvergier, Troplong, and Persil.

If the French commentators are equal in authority on both sides- and resort is liad to independent reasoning, it is not perceptible why the right to dissolve the sale for non-payment of the price should not pass to the buyer of the credit, as well as the right to enforce the payment of the price, throng'll the vendor’s lien, for why should the one he deemed to pass by a general transfer of the credit and not the other? Both are means of compelling the buyer to perform bisobligation. The buyer’s obligation is to pay the price or restore the property. The action to enforce the vendor’s lien compels the payment of the price, or failing that, the sale of the property, in order that the price may be realized. The action to dissolve the sale for -non-payment of the price compels the restitution of the property without the intervention or medium of a forced sale of it. If the one is. transferred by the transfer of the credit that represents the price- (and all authorities agree that it is) what reason in logic or in law can there be for holding that the right to dissolve the sale must be specially transferred or it will not pass by the transfer of the credit that represents the price. The French commentators, so acute in discerning refined distinctions and sometimes pushing them to the verge of metaphysical subtlety, divide on the question as each holds the right to he an accessory or not of the principal obligation, but where the vendor lias two remedies or rights, it appears inconsistent and technical to require a special transfer of one while the other passes by a general transfer..

It may be said that the right to dissolve the sale for non-payment of the price ought to be exercised by the seller and by no one else, for if he sells the credit that represents the price he has received the price of his property in the sum he gets for the credit. But this is an argument for the non-transferribility of the resolutory action. Now all the writers hold that the action is transferrible. The difference between them is that some hold the transfer must be special and others that it need not be.

Again, if tbe transferrer of the claim for the price does not transfer the right of resolution of the sale because of non-payment of it among his other vendor’s rights, the buyer of the property might he exposed to two actions by two parties — one by the transferree for the price, the other by the seller for the dissolution of the sale for non-payment and thus two suits might go on pari passu. Must judgment be rendered in each, or will one exclude the other? And will in the latter case the transferree or the seller be compelled to give way ?

While I consider that the right to sue for the resolution of the sale passes without special mention, I believe that it does not pass, where the entire claim for the price is not transferred and that it cannot be exercised, unless by the person or persons who represent the whole slaim.

As the entire claim is not represented in this suit, I think that plaintiffs’ demand must be dismissed.  