Swan v. Gayle , 24 La. Ann. 498 ( 1872 )

Wyly, J.

In July, 1859, H. Eilhiol sold to W. H. Gayle the house and lot in Monroe, described in plaintiff’s petition, for $6050, evidenced by the three promissory notes of the latter, made part of the petition, and also another note for $2000, which has been p^iid.

The plaintiff, the indorsee of said notes, sues the defendant,, the administratrix of the succession of the vendee, to dissolve the sale for non-payment of the price. The court ordered the defendant to pay the price within the time fixed in the decree, and in default thereof ordered the dissolution of the sale as prayed for.

From the evidence we are satisfied that the notes evidencing the obligation of the buyer have not become prescribed.

The main question in this controversy is, can the resolution of the sale he demanded by the indorsee of the notes representing the unexecuted legal obligations of the buyer ?

We think that it can.

The owner of the notes owns the unexecuted obligation of the buyer with all the securities and remedies provided by law for its enforcement.

The conveyance of perfect ownership by the seller and the delivery of the possession, completed the execution of the contract of sale on his part; the corresponding obligation of buyer was deferred till the maturity of the notes. His engagement was to pay the price or restore the thing. „ The performance of the one or the other, the express or the implied condition, would discharge the legal obligation on his part. The decree dissolving the sale executes the contract as fully as the decree ordering the payment of the price.

Whether the express or the implied condition he performed by the buyer is immaterial; the performance of either consummates his engagement.

“ If the buyer does not pay the price the seller may sue for the dissolution of the sale.” R. C. C. 2561. Why? Because, taking the thing upon two conditions — the one expressed to pay the price, the other implied to restore the thing — he is liable to be pursued by the seller for a compliance with either condition after being in default for the price. As security for the obligation of the buyer, the seller may demand the price with the vendor’s privilege on the thing sold, or he may demand the restoration of the thing itself.

These are the remedies provided by law for the enforcement of the' obligation of the buyer.

The vendor’s right to pursue either remedy does not result from an obligation personal to himself; it is only because he is the owner of the obligation of the buyer.

The owner of a legal obligation is necessarily clothed with all the remedies provided by law for its enforcement.

It would be absurd to say that the owner of a legal obligation does not own the remedy or remedies provided by law to compel its execution. Having the legal right, he owns the corresponding legal obligation of the buyer, whereby is imposed on the latter the juridical necessity of performing or discharging that right or duty in the manner provided by law. The duty of the buyer may be discharged by payment of the price or by restoration of the thing; and the only person who can invoke the law to compel this discharge of duty is the party owning the obligation. He alone is aggrieved where the buyer is in default for the price ; and he alone has cause to complain.

We think the right and the remedy or remedies are inseparable.

The right to compel the performance of the obligation in the case before us belongs to the plaintiff as the owner of the notes, evidencing the unexecuted obligation of the buyer, and he has the right to ask the intervention of the State to compel its performance. He may demand the application of the remedies of the law in such cases made and provided.

In George, curator, v. Lewis, 11 An. 655, this court said : “ The dissolution of a commutative contract for non-compliance by either party with his engagements is really the carrying into effect of a part of their convention, either express or implied. * * * The plaintiff might have sued successfully for the price and claimed the vendor’s privilege on the land. He resorted to a concurrent remedy' by demanding the dissolution of the sale,” etc. See also the authorities cited in that case.

The character of the dissolving condition was determined by this court as early as 1824, and the correctness of the ruling has not since been questioned. Torregano v. Segura, 2 N. S. 159. In that case where the surety of the buyer for the price of a slave paid the debt and sued the syndic of the latter to dissolve the sale, on the ground of legal subrogation existing in his favor, whereby he became entitled to pursue the same remedy as the vendor, it was urged in defense “that although the plaintiff as indorser was bound in solido with the vendee, ■he is nevertheless a third party as regards the contract, a'nd does not become subrogated to the rights of the vendor (the right to dissolve the sale) unless this be expressed in a notarial act at the time of the payment. C. C. 288, 150.

Further, that without this formal subrogation the plaintiff could not have an apparajada execution, because there would be no transfer of the judgment which the act of mortgage imports; neither can he bring the action of rescission, because he is not a party to the sale, and were it rescinded, the title would revert to the vendor, so that the plaintiff could have no benefit thereby.” The court decided through Judge Martin, its organ, that “the subrogation is of the right of the creditor, not against the debtor only, but also against the securities, C. C. 188, 149 and 152, and like a transfer of a debt, it includes everything which is accessory thereto, as suretyship, privileges and mortgages. C. C. 368, J24.

“ The rescission of the sale is a means of securing the payment 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, in our opinion, the same effect.”

Now, as there is no doiibt that the plaintiff owns the claim or debt evidenced by the notes, it follows that he also owns the accessory right or remedy of resolution appertaining thereto, and it passed to him by the indorsement of the notes.

As to the argument that the plaintiff can not demand the dissolution of the sale, because he was a third party, and were it dissolved the title would not vest in him but in the vendor, so that he could not be benefited thereby, we will remark that was the ground taken in the case decided in 1824, and Judge Martin attached but little importance thereto, and we entirely concur in his conclusion.

Whether Gayle was insolvent or not could not defeat the resolutory action. This was also made a .point, without effect, in Torregano v. Segura’s Syndic, to which we have referred. The dissolving condition was not lost by failure to reinscribe the mortgage within ten years. 12 An., Johnson v. Bloodworth, 699, and authorities there cited.

There is no force in the plea of the prescription of ten years, acquirendi causa. The buyer in default for the price can not urge that defense to the enforcement of the unexecuted obligation lying at the foundation of his title. As long as the obligation of the buyer subsists and may be enforced in either the modes provided by law, he will not be heard pleading his possession of ten years in bar of the enforcement of the condition on which he acquired that possession. His title, as to his vendor, was -not indefeasible as long as his legal obligation to pay the price subsisted. As to the failure of the plaintiff to offer to réstore the installment which he received before demanding the resolution of the sale, we will observe that the record furnishes ample evidence of a sufficient offer. Only one of the notes was liable to the plea of prescription of five years, and that was waived by Gayle in 1867, the waiver being indorsed on the notes.

The other defenses are not of a serious character.

It is therefore ordered that the judgment appealed from be affirmed with costs.