Gonsoulin v. Adams , 28 La. Ann. 598 ( 1876 )

Litdeling, O. J.

This is an action to dissolve a sale for the non-payment of the price, instituted against a third party who acquired a title at sheriff’s sale under execution against the plaintiff’s vendee, and also a petitory action. 1

The plaintiff, alleges that he is the owner of the property, which was retroceded to him by his vendee for the non-payment of the price, and attacks the sale by the sheriff to the defendant on the ground that the judgment debtor had not paid the price of the land and his title was de-feasible, and the purchaser at the sheriff’s sale acquired only such title as their debtor had.

The act of retrocession by Darden was made after the sheriff’s sale, and when he had no right or interest in the lands. We will, therefore, leave out of view this retransfer.

The right to dissolve a sale for the non-payment of the price is independent of the mortgage or vendor’s privilege. Swann vs. Gayer, 24 An. 502. It is conferred by the textual provisions of the Code: “If the buyer does not pay the price the seller may sue for the dissolution of the sale.” C. C. 2561; Marcadé, voL 6, p. 291. And this right may be exercised against the assigns of the vendee, for they could only acquire such rights as he had, taking the property cum onere. See 12 An. 778, 699; 23 An. 757.

The defendant has, however, interposed the plea of prescription of ten years in bar of this action. The record shows -that more than ten years had elapsed between the date of the maturity of the first installment of the credit portion of the price and the institution of this suit. But the plaintiff strenuously urges that prescription against this right did not begin to run till after the maturity of the last installment, and ten years had not elapsed from that period.

Obviously, when the buyer failed to pay the first installment of the price the seller might have exercised his right to dissolve the sale for the non-payment of the price, and prescription against that right began to run from the moment when it might have been enforced. See George vs. Knox et al., 23 An. 355.

It is therefore ordered that the judgment of the lower court be annulled, and that there be judgment in favor of the defendants rejecting the plaintiff’s demands with costs in both courts.