Thompson v. Kilcrease , 14 La. Ann. 340 ( 1859 )

Merrick, C. J.

This suit was brought to cause a sale of three hundred and twenty-three and-a-half acres of land in the parish of Carroll, to be rescinded for the non-payment of the price.

We shall place the case upon the facts as conceded in the argument, and consider only the questions discussed at the bar, and in the briefs.

We therefore assume (as conceded) that the instrument executed on the 26th day of November, 1855, was a sale from the plaintiff to the defendant, D. L>. Kil-crease, of the land in controversy. The price was $3235, for which it was agreed, that the defendant, Kilcrease, should give his promissory note payable one day after date, with eight per cent, interest thereon from the date thereof, to bo paid in the following manner, viz : the net proceeds of twenty bales of cotton to be paid annually, the amount thereof to be applied to the credit of the note until the payment of the same.

Kilcrease went into possession of the land, and after making some improvements sold the same to the defendant, Thomas L. Beard, in August, 1856, at an advance of three thousand two hundred and thirty-five dollars, Beard assuming to pay his vendor’s debt to Thompson. On the 28th day of January, 1857, the plaintiff demanded, through a Notary Public, a performance of the contract of Beard and Kilcrease in vain, and a formal protest was made. The same day Beard sold the tract of land to the defendant, Emily Knox, wife of W. L. Knox, she assuming the obligations of Kilcrease and Beard.

This suit was commenced in May following, against D. McNeil, the proprietor, Mrs. Knox, Beard and Kilcrease. In September, of the same year, 1857, Madam Knox sold to McNeal, who assumed her liabilities on account of the land.

The District Judge awarded to the plaintiff a dissolution of the sale, and to the defendant, Kilcrease, five hundred dollars, the value of his improvements. Beard, Mrs. Knox and McNeil, prosecute the appeal.

The plaintiff prays for an amendment of the judgment in his favor as against Kilcrease. The latter alleges that he is only an appellee, and denies the right of the plaintiff to claim an amendment of the judgment; nevertheless, demands that instead of five hundred dollars, he be allowed one thousand dollars, as against the plaintiff, for improvements.

It has been contended, on behalf of the appellants counsel, that the mode in which the payments were to be made, formed a part of the promissory note, and was the same as though the mode of payment had been written in the note itself; that the installments were to be in sums equal to the net proceeds of twenty bales ' cotton annually; that the non-payment of one instalment at maturity, did not make the residue of the note exigible, and that the sale could not be rescinded until the maturity of, and default in paying the last installment, and that the promise to pay over the net proceeds of the cotton, is under Arts. 1762,1763, an independent contract.

It may be conceded, for the purposes of this decision, that by the agreement, the note was to be paid in installments, and that the maturity and non-payment of one installment, did not enable the plaintiff to sue for the residue of the note, but this will not aid the case. The neglect and refusal to pay a single installment, in our opinion, gives the vendor the right to annul the sale. Whenever the vendee refuses to comply with the stipulation to be performed by him the vendor is obliged to wait no longer, but may at once demand a dissolution of the contract.

Why should the vendor, who has made a sale on long time, be compelled to see his vendee enjoy the revenues of his property year after year, without paying any portion of the price, or even the interest upon the money ?

The Oode says : If the buyer does not pay the price, the seller may sue for a dissolution of the sale. O. 0. 2539. What is meant by this article may be perceived by comparing it with Art. 2041, which says : “ A resolutary condition is implied in all commutative contracts, to take effect in case either of the parties do not comply with his engagement" A party does not comply with his agreement when he refuses to pay the first installment of the price which has fallen due and which he has contracted to pay. Such also, is the view of Troplong on this subject. See Trop. vente, Nos. 642, 646. The promise to pay the price by installments, or in any particular mode, does not make the contract any the less commutative, for in the contract of sale the price is the equivalent or consideration for the thing. 0. C. 2414. Pothier, vente, No. 2.

The plaintiff contends that he ought not to be compelled to pay for the improvements made upon his property by the vendee, who has refused to pay the price. It appears to us to be a consequence of Art. 2040, that he must pay for the improvement made upon his property prior to the putting of the defendant in mora, or a demand for the dissolution of the contract. For Art. 2040 requires matters to be placed in the same state as though the obligation had never existed, and obliges the creditor to restore what he has received. If he is to restore what he has received, and he cannot enrich himself at the expense of the vendee, he must restore what he receives in improvements jilaeed upion the jmoperty in good faith and returned to him, as well as sums of money or anything given in payment. The revenues of the property during this period were nothing.

As to the improvement made by McNeil after the institution of the suit, which consisted in clearing land and ditching, we are of the opinion that he cannot recover.

They must be considered as made by a possessor in bad faith, and being of a kind not susceptible of being removed, the plaintiff cannot be compelled to declare whether he will take the same, or cause the defendant to remove them.

In regard to the person entitled to recover for improvements, we are not prepared to say that the District Judge erred in awarding the five hundred dollars to Kilcrease If he receives the amount, he must account to his vendee in a settlement between them, and it will be understood in this action we do not undertake to settle the respective rights of the defendants, there being no demand in warranty between them.

The defendants did not apply to the court for an extension of time, in which to make payment.

Judgment affirmed.