Sainet v. Widow Duchamp

Merrick, O. J. The facts of this case are correctly stated in plaintiff’s brief, as follows, viz : “ In 1832, the father of the plaintiff sold to Mr. Bernard Duchamp, a house and lot, for the sum of $5,500, with the stipulation that the purchaser, his heirs or assigns, should have the right to prolong the payment of the price, indefinitely and at their will, on paying the vendor, his heirs or assigns, interest in advance, at the rate of seven per cent, per annum. The following is the clause referred to : ‘ La présente vente est faite pour et moyennant la somme de cinq mille cinq cents piastres que l’acquéreur s’oblige de payer au vendeur dans un an a partir de ce jour, ét-ant expressément convenu entre les parties que l’acquéreur aura le droit de prolonger indéfiniment et á sa volonté, lui, ses héritiers ou ayans-cause le remboursement de la dite somme de cinq mille cinq cents piastres, en payant au vendeur ou á ses héritiers ou ayans-cause, et annuellement, les intéréts de la dite somme sur le pied de sept pour cent par an payable d’avance en la demeure du vendeur ou de ses héritiers dans l’étendue de cette paroisse, le tout ainsi que l’acquéreur s’oblige.’ ' *• This property afterwards passed into the possession and ownership of Mrs. [540] <Delphiné Ezémie Macarty, by act of sale from Charles' Claiborne, -(who acquired by mesne conveyances from Mr. Bernard Duchamp,) before Carlile Pollock, dated ■7th April, 1836. In the act of sale to Ezémie Macarty, is the following clause : ■í The balance of said price of $5,500, is to be paid in the obligation which the present purchaser hereby takes to assume, as she hereby does assume, the before recited mortgage in favor of Emile Sainet, and to pay unto the latter, his heirs .or assigns, to the acquittance of the present seller and all other preceding vendors, ■the full amount of said debt of $5,500 in capital and interest, annually in advance, -in conformity to the tenor and true intent and meaning ’of the before recited act of mortgage, in favor of said Emile Sainet, on the 10th of February, 1832.’ “ The present plaintiff became the owner of this claim by purchase at probate sale of his father’s estate. “ Bernard Duchamp died in 1832, soon after the purchase, leaving a large estate, exceeding the sum of $20,000 over and above his debts. '■ “ The interest not having been paid in advance for the year 1857, according to the terms of the agreement, this suit is brought to recover the price both against the widow and heirs of Bernard Duchamp and Ezémie Macarty, who assumed the obligation of Duchamp, and bound herself to execute the same.” It is conceded by counsel on both sides, that the contract is either one of rent of lands or annuity, and if the contract were to be construed as simply a sale, the rights of the plaintiff under it, would be the same as in the case of an annuity. The case, therefore, as presented by counsel, involves only a comparison of the definitions and provisions of the Code of 1825, in reference to the two species of contract. If it be the rente fonder e, a tract of land, or other immovable, has been conveyed by one party to the other, to be held by the latter as owner, but reserving to the former an annual rent of a certain sum of money, or of a certain quantity of fruits which the other party binds himself to pay. C. C. 2750. Now, the contract under consideration, has but one of the qualities called for by the definition, viz, the conveyance of a tract of land. It is wanting in this essential particular, viz : There is no reservation of an annual rent of a certain sum of money or fruits, which the other party has bound himself to pay. There is no obligation on the part of the vendee, to pay the rent which the other party could inforce by an action. He had the right to prolong the payment of the price indefinitely by paying the seven per cent, interest annually in advance. The creditor, therefore, had no action (distinct from his demand to inforce payment of the capital) to recover the annual interest upon the price of the sale, for the moment the interest was not paid in advance, the condition upon which the capital was to be exigible, had happened, and the debt (and seven per cent, interest, which it seems could not be recovored separately,) was demandable. 10 Mart. 116. N ow, the contract of rent (where it exists) is a real contract, and follows the property. The holder of the property, and not the one who acquired it under the contract, if he has sold it, is responsible for the rent. O. 0.2758. And this rent charge being inherent in the property, burthened with it, is itself susceptible of being mortgaged, except when gratuitously established. 0. O. 2763. ; Now, in the case before us, what right did the vendor acquire by the sale which he could mortgage ? He could not demand the rent by suit, for it was entirely optional with the debtor, whether he would pay it in advance or not. [541] There was, therefore, no right, in the language of the Code, “ inherent'to the property,” which could be mortgaged. The contract of rent charge, therefore, did not exist. The contract of annuity, la rente constituée, is defined by the Code, to be a, contract by which one party delivers to another, a sum of money, and agrees not to reclaim it so long as the receiver pays the rent agreed upon. Art. 2764. Now, the contract sued upon, is precisely the contract above defined, except in the single particular, that it has been brought about by the sale of land. The sum of money delivered, has been produced by the sale of a tract of land. This appears to us in no manner material, for the land is supposed to be converted into money in all sales of the same, and the notes given for the price circulate as commercial paper before maturity, without reference to the original consideration. We can see, therefore, no objection to the manner in which the capital was raised, which formed the rente constituée. Trop. vente, No. 647 ; 5 Martin, 312. Nor can it any manner prejudice the contract, because it is accompanied by a mortgage and the vendor’s privilege. For a mortgage may be given to secure the fulfilment of any obligation whatever. C. C. 3258. And on the nonpayment of the interest in advance, after the expiration of one year, the price was demandable, and, therefore, secured by the vendor’s privilege. No prescription could run, for the plaintiff had no cause of action until the breach of the condition. .The demand in warranty is well founded against those parties who have promised to fulfil the obligations of the original vendee. C. P. 379 ; Keane v. Goldsmith, Haber & Co., 12 An. 560. It is, therefore, ordered, 'adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed ; and now proceeding to pronounce such judgment as ought to have been rendered by the District Court: It is ordered, adjudged and decreed, that the plaintiff do have and recover of the said widow and heirs of Bernard Duchamp, deceased, the sum of five thousand, five hundred dollars, with seven per cent, interest thereon per annum, from the 10th day of February, 1857, until paid, the one-half of said sum and interest to be paid by said Widow Rosalie Pedesclaux (Duchamp) ; and one-sixth part thereof to be paid by each of said heirs of Bernard Duchamp, viz, one-sixth of said debt and interest, by said Caroline Durel, one-sixth by Clarissa Duchamp, and one-sixth by Adéle Duchamp, the same being their virile portions of said debt and interest. And it is further ordered, that the plaintiff recover judgment against Delphine Euginée Macarty, for the same debt of five thousand five hundred dollars, with seven per cent, interest thereon, from said 10th day of February, 1857, until paid, upon the stipulation pour aut.rue, the plaintiff being entitled only to one satisfaction of said debt and interest; and in the event said debt and interest, or costs, or any part thereof, shall be paid by said widow and heirs of Duchamp, to the plaintiff: it is ordered, that they have judgment, and are hereby authorized to issue execution for the same amount on their demand in warranty-against said Macarty. And it is further ordered, that said Macarty do have judgment for said @5,500, and interest thereon, at the rate of seven per cent, per annum, from said 10th day of February, 1857, until paid over, against said Adelaide Blondeau and Henriette Blondeau, each for their virile share of the same. And it is further ordered, that the plaintiff recover of the defendants his costs in both courts, and that the defendants in warranty pay the costs incidental to the demand in warranty respectively. .•_