dissenting. In 1832, the father of the plaintiff sold to 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, étant 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 a 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 cotte paroisse, le tout ainsi que l’acquéreur s’oblige.”
In 1836, Charles Claiborne, who had acquired the property by mesne conveyances, from the succession of Duchamp, sold it to Ezémie Macarty, herein called in warranty by defendants, for the price of §7,800, in deduction of which she paid cash §2,300, and for the balance entered into the following engagement, to-wit: “ The balance of said price, to-wit, §5,500, is to be paid in the obligation which the present purchaser takes, to assume, as she hereby does, the reversion of the before recited mortgage in favor of Emile Sainet, and to pay unto the latter, his heirs or assigns, to the acquittance of Cla borne and the heirs of Duchamp, the full amount of the said mortgage in capital and interest, according to the tenor and true intent and meaning of said act of mortgage from the late Bernard Duchamp in favor of the late Emile ¡Sainet, of the 10th of February. 1832.”
The interest not having' been paid in advance for the year 1857, according to the terms of the contract, this suit is brought against the widow and heirs of Duchamp and Ezémie Macarty, to recover from them the whole amount of the capital above mentioned, to-wit, §5.500.
The principal question is, the nature of the contract declared on : is it a “ contract of rent ” (rente fonciere), or a “ contract of annuity ” (rente constituée) ?
The first description of rent did not exist in the Code of 1808, and is derived mainly from Pothier’s Contrat de Bail á Rente Fonciere. Code of 1808, p. 408, Art. 33, chap. 3 ; Pothier, Contrat de Bail á Rente, cap. 1, secs. 1 to 5.
The learned jurists of the Louisiana bar who were commissioned in 1822, for the purpose of proposing additions and amendments to the Civil Code of 1808, say, at page 92 of their report:
“ The contract of rent (rente fonciere), which is now pretty common among us, has not found a place in the Code, (that of 1808). We have thought it necessary to supply this omission, and to include under a single title both rents and annuities.”
They accordingly proposed the adoption ol the whole title of “ Rents and Annuities,” which was, on their suggestion, incorporated in the Code of 1825, as' may be seen from Article 2749 to 2771 inclusive.
The essential characteristics of the contract of “ rente fonciere," ór rent of lands, are, that one of the parties conveys and cedes to the other, in perpetuity, a tract of land, or any other immovable property, and stipulates that the latter shall hold it 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 him. C. C., Arts. 2750, 2751.
*543The act passed in 1832, between Emile Sainet and Bernard Duchamp, contains these essential provisions of the contract of rent of lands, and although bearing the name of a sale, is therefore a contract of “ rent of land.”
The law of this contract is, that the property remains perpetually subject to the rent, into whatsoever hands it may pass, and the person alienating it is only answerable for the arrears which became due while he was in the possession. 0. 0., Arts. 2751, 2758.
As the properly which was transferred by the act of 1832 to Duchamp is not in the possession of any of the parties now sued, the action ought to have been instituted against the present possessors of the same, as the present defendants are only answerable for the arrears of rent which became due while they were in possession, and there is no allegation that they did not fulfill their obligations in this respect. 0. C. 2758.
Plaintiff relies on the case of Mayor v. Duplessis, 5 M. p. 309. This is not applicable, for it was decided in the year 1818, previous to the new Code of 1825, which has modified and added to the law analogous to the action at bar.
It is objected, that the contract under consideration has but one of the qualities called for by the definition of Article 2750 of the Civil Code, to-wit, the conveyance of a tract of land Such does not appear to be the case. Article 2750 declares, “ that the contract of rent for lands is a contract by which one of the parties conveys and cedes to the other a tract of land, or any other immovable property, and stipulates that the latter shall hold it 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 him.”
This Article reserves to the obligee “ an annual rent of a certain sum of money.”
If, then, a certain interest upon the estimated value of the property conveyed be specified, it is as much a payment of rent, as if a particular amount were specified as rent. And indeed, as a general rule, the rents of houses and other property represent the interest of the capital invested in such houses or property.
Besides, Article 2750 is not the sole one that treats of the contract of rent, and other Articles must be examined to comprehend fully the subject.
Art. 2752 declares, “ that a contract made, bearing the name of asale, in which the seller does not stipulate the payment of the price, but a capital bearing interest forever, is a contract of rent.”
The sale now under consideration appears to be embraced in this Article, for the property is valued at a certain price, which represents the capital, and it bears interest forever.
It is also objected, that there is no obligation on the part of the vendee to pay the rent, which the other party could enforce by an action distinct from his demand to enforce payment of the capital.
It is true, that the vendor in this contract has the right of demanding the capital as well as the interest, in default of payment of the interest, and that the interest is payable in advance; but the parties, by thus changing the features of their contract, on immaterial points, from those of the contract of rent in the Civil Code, have not destroyed the material characteristics of the contract of rent which are impressed upon their act.
Besides, the vendor would have the privilege of waiving the right of demanding the capital, and might sue for the interest alone.
*544The cla.'use iu the sale malting the capital due at once, in the event the interest V be not paid, is made for the benefit of the vendor, and may be waived by him. (
The essential parts of the contract of rent are, that one party cedes to the other ^ in perpetuity a tract of land, or any other immovable property, and agrees that the latter shall hold it as owner, but reserving to the former an annual rent. The Civil Code does not make it essential that the rent should not be made payable in advance, nor that, in default of payment of the rent, the capital should not be exigible at once, as well as any rent that might be due at the commencement of the suit. C. 0. 2750, 2751.
Art. 2762 declares that, “ the rentor has for the payment- of his rent a right of mortgage on the property, commencing from the date ol the contract, but he cannot have it seized and sold, unless there be at least one entire year’s rent due.”
The last clause is a mere provision of the law, which governs in the absence of any modification by the contracting parties; it is not a prohibition, and like any other right, may be dispensed with by the lessee, in whose favor it was enacted.
It is also objected, that the rent charge being inherent in the property bur-theued with it, is itself susceptible of being mortgaged, C. C. 2763, and as the rent was payable in advance, there is nothing to mortgage.
The right of mortgage given by this Article is for the benefit of the vendor, and if he thinks proper to mould his contract so that it cannot be enforced, there is nothing in the law to prevent him from so doing.
It is also said, that this is a contract of annuity. Such does not appear to be the case, for the contract of annuity is that 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. C. C. 2764.
In the present case, neither money nor notes were given. By the sale, a house and lot were sold for a certain sum, which was not payable as long as the vendee ■would pay a certain interest in advance. 0. 0. 2752.
The essential distinction between the contract of annuity and that of rent is, that in the former a sum of money is delivered, in the latter a tract of land or any other immovable property is conveyed. 0. 0. 2764, 2750.
In the present case, the vendor ceded the land, and the vendee was, in a certain event, to pay in money the price of the land. The vendor did not deliver any money upon which he was to receive interest, and the vendee agreed to pay interest, not upon money, but upon land.
The argument, that the laud ceded was in reality money, because it represented a certain value in money, would, if it were valid, prevent a contract of rent from ever being made, for the value of the property is specified in the contract of rent, or if there has been no valuation, the rent is considered as fixed at the rate of six per cent, on the value. 0. 0. 2760, 2761.
I am also of opinion, tlia-t in the sale by Claiborne to Ezémie Macarty, she did not render herself personally responsible in such a manner, that if she alienated the property, she would still be liable for the mortgage, but only bound herself whilst in possession of the property to fulfill the obligations incumbent upon her, under the law of the contract of “ rent of land,” for in the act of sale it is expressly specified, that she assumes the reversion of the mortgage, and agrees to pay the same “ according to the tenor and true intent and meaning of said act of mortgage from the late Bernard Duchamp in favor of the late Emile Sainet, of the 10th of February, 1832.”
Her intention was, therefore,- to submit herself to the same obligations as to *545the mortgage, as Duchamp was under to Sainet; and as Diichamp was only bound for the same in the event of not paying the rent, and only whilst he was in possession of the property, except for the arrears which became due while he was in the possession, so in lilre manner is she subject to similar obligations. 0. 0. 2758 ; 1 An., Succession of Canoiige.
Julian Seghers, on a re-hearing, argued as follows : It is to be remarked, that in the Code of 1825, the contract of rente fonciére was made on purpose to be in conformity with the usages of Louisiana, and differs from the doctrine of Pothier by the introduction of Articles 2752 and 2759, which make it a contract sui generis, peculiar to our laws and usages, and not exactly in accordance with the old French law, which existed anterior to the French revolution.*545The intention of the parties to this sale is also shown by the declaration therein, that the “ reversion of this mortgage had been assumed by the several purchasers under the said Bernard Duchamp down to the present seller.”
In the sale from Ezémie Macarty to the widow, Blondeau, the latter also assumed the same obligations to assume and to pay the said mortgage to the acquittance of the present seller and all other preceding parties that the former assumed and promised to pay in her purchase from Claiborne. An examination of the various acts of sale shows clearly that she did not subject herself to any other personal obligation than that of paying the mortgage, in the event she did not pay the rent whilst the property was in her possession.
The contract under consideration cannot be considered a sale, for it is essential to a sale that there should be a fixed price. But if this price may never be exi-gible, then it is the same as if there were no price. In this case, as long as the interest was paid in advance, the five thousand five hundred dollars were not de-mandable. It seems to me, that the nature of a sale requires that the price should become due at some period of time, however remote. But in this case, the price may never become due, if the interest be punctually paid.
Besides, if a contract of- this nature could be considered a sale, it could act with much hardship upon parties. A buys a house for ten thousand dollars, which are not to be paid as loug as seven per cent, interest upon that sum is paid every year in advance. lie keeps the house and has the use of it for one year, then sells it to B. The latter pays the interest in advance annually, for thirty years, and then, when the property has decayed, and is comparatively worthless, he refuses to pay the annual interest.
It would be very hard, at the expiration of thirty years, to make A liable for the whole price of the house, when he had enjoyed it but for one year, and when he might never be able to get back the money from B, who might bo insolvent.
In the present case, Ezémie Macarty bought this property on the 7th of April, 1836, and sold it on the 29th November, 1837, and this suit was brought on the 20th April, 1857.
When, therefore, the nature of the contract under consideration and the intentions of the parties are weighed, it appears to me that this contract can with more propriety be declared one of rent, than either a sale or annuity.
The judgment of the District Court was for defendants, reserving to the plaintiff his right against the present possessors of the property.
I am of opinion, the judgment ought to be affirmed.
Buchanan, J., concurs in this opinion.