George v. Knox

Lubering, C. J. This is an action for the resolution of a sale for the non-payment of tlie price. . In November, 1855, tlie plaintiff sold to Knox a plantation for $34,000, payable in installments as follows : Four thousand dollars on the first day of March, 1856; three thousand dollars on tlie first day of March, 1857; and a like sum annually thereafter until the first of March, 1865, [355] Tlio first two installments, amounting to $7000, were paid at their maturity; tho other notes are still unpaid. Citations in this suit were acknowledged on the eighteenth and twenty-second of May, 1868. The note maturing on the first of March, 1858, was not paid. At that moment, the purchaser having failed to comply with Ms engagement, the resolutory condition, implied in all commutative contracts, took c-ifect, and the seller had a right to sue for the dissolution of the sale. C. C. 2015, 25C1. And from the period when the seller had the right to sue to dissolve tho sale for the non-payment of the price, prescription began to run against that right; therefore the action was barred by the prescription of ton years, when it was instituted in May, 1868. C. C., 3508; 11 An. 656, George v. Lewis; 14 An. 340, Thompson v. Gelcnore. Besides, it appears from the allegations of the plaintiff’s petition, that ho has received $7000 of the price, and this money he has not restored or offered to restore to the purchaser. He cannot keep the price and claim the property which was sold. 4 La. 198; 19 La. 281; 9 R. 306; 2 An. 389; 4 An. 562; 21 An. 425. The plaintiff contends that the price received by him was compensated by the rents andrevenues of tho place while in the possession of tlie vendee, and he relies upon an agreement entered into between himself and tlie curator ad hoc, appointed to represent Knox, an absentee, which is as follows : “ It is agreed between the parties, plaintiff and defendant, first, that tho plaintiff waives and renounces all claim or interest in and for rents and revenues claimed in the petition for the use and occupation of the lands or plantation by the defendants and their vendees, after their purchase from tho plaintiff, and it is agreed, in the second place, that in consideration of the above remuneration on the part of the plaintiff, that the defendants hereby relinquish and renounce any and all claims for the repayment of any money or moneys they may have at any time paid said plaintiff for and in part payment of the price of the land, the sale of which is sought to be dissolved and rescinded bv this suit. This -day of October, 1868, (Signed) “ M. DuBOSE, Attorney for Plaintiff. “ ED. IP. NEWMAN, Curator ad hocP The curator ad hoc had not the authority to make such an agreement, and even if he could lawfully have entered into it, it did not bind the estate of McNeil, the vendee of Knox, and the real defendant. The fruits of property belonged to the owner thereof, and the vendee was the owner of the property, and not the vendor. It is therefore ordered and adjudged that tho judgment of the district court be affirmed with costs of appeal.