Shelly v. Winder

The opinion of the Court was delivered by Fenner, J. Shelly sold a plantation to Winder on credit. Thereafter, Marx Levy & Co. sold to Winder twenty mules on credit, which [184] were, attached to the plantation. Shelly sues Winder for a resolution of the sale for non-payment of the price. Levy & Co. intervene, opposing the subjection of the mules sold by them, to Shelly’s claim, and praying judgment against Winder for price of the mules, with recognition of their vendor’s privilege thereon. The judgment appealed from resolved the sale of the plantation, but recognized and enforced Levy & Co.’s privilege on the mules sold. The appellant assigns error in the judgment, on two grounds: 1. That the vendor’s lien on the movables sold was extinguished by their conversion into immovables by destination. 2. That the lien was lost by failure to record it until after the institution of the resolutory action. , Certain French authorities are quoted in support of the first proposition, but others are of a contrary opinion. This Court has adopted the view of Troplong, to the effect: “That the purchaser of such movables as mules, agricultural implements, etc., cannot affect the rights of the vendor thereof by impressing upon them the purely metaphysical quality of immovables. The thing sold subsists in all its parts just as it was when sold, without any change in its nature, or otherwise, except in its destination; and such destination is considered as imperfect and subordinated to the rights of the vendor.” Troplong Priv. and Hyp. No. 113; Carlin vs. Gordy, 32 A. 1285; Gary vs. Burguiéres, 12 A. 227; Bergeron vs. Patin, 34 A. 535. As to the alleged defect of registry, we consider that it is one with which plaintiff has no concern. He does not assert any mortgage or privilege on the property. He simply claims the dissolution of his sale for breach of the resolutory condition, the effect of which is to “place matters in the same state as though the obligation liad not existed,” and “to oblige the creditor to restore what he has received.” C. C. art. 2045. Shelly never sold these mules to Winder and has no right to claim them in this action. The authority cited from 3 A. 608, refers to the offspring of slaves sold and is governed by different principles, which readily suggest themselves. The effect of the dissolving condition being to put the parties in the same condition as if they had never contracted, it follows that the offspring of slaves sold return to the seller with their parents, for the reason that, had there been no sale, they would have belonged to the seller. These principles have no application here. Judgment affirmed.