dissenting. The ancestor of the plaintiff, sold to Bernard Duchamp a house and lot for the price of $5500, which the purchaser obligated himself to pay to the vendor, at the end of one year from the date of the sale. And it was agreed between the parties, that the purchaser should have 'the right to prolong the payment of the price indefinitely and at his will, on paying to the vendor interest in advance at the rate of seven per cent, per annum. This stipulation was made to extend to the heirs and assigns of the party. Without this stipulation the contract would be a pure and simple sale, at the price of $5500, payable at *549the end of the year. The difficulties o-f the case, therefore, spring out of the stipulation as to the payment of interest, which has been made a part of the contract.
The difference between the sale, and the agreement to pay interest, is very radical. The sale is absolute, and conveys the title unconditionally, and binds the vendee to pay the price. The agreement to pay interest does not affect the title conveyed to the vendee, nor does it affect his absolute obligation to pay the price— but granted to him a right to postpone the payment of the price, on the condition of the payment of interest in advance — which right he could exercise, or not, at his ou>h will or pleasure, under the express stipulations of the agreement.
The agreement to pay interest was, therefore, contracted on a potestative condition, and gave to the vendor no right of action for its recovery, and was in itself void. C. 0. 2029.
Pother says : “ It is of the essence of agreements, which consist in promising something, that they should produce an obligation in the party mailing the promise to discharge it; hence it follows, that nothing can be more contradictory to such an obligation than an entire liberty in the party making the promise to perform it, or not, as he may please. An agreement giving such entire liberty would be absolutely void for want of obligation. If, therefore, I agree with you to give you something, in case I please, such an agreement is absolutely void.” Pothier on Obligations, sec. VII. No. 47.
Article 2019 of the Civil Code, is in these words :
“ The potestative condition is that which makes the execution of the agreement depend on an event, which it is in the power of the one or the other of the contracting parties to bring about, or to hinder And Article 2029 declares that every obligation is null that has been contracted on a potestative condition on the part of him who binds himself.”
Now, on what event was the postponement of the payment of the price made to depend ? It was on the payment of interest in advance by the vendee, and this payment of interest was, under the express terms of the agreement, at his entire will and pleasure, (a sa volenté). Such an obligation or agreement is not only declared by Pothier, but by our Civil Code, to be absolutely void.
Can it then be said that the vendor had a right of action for the recovery of the interest? Can a void obligation be made the foundation of an action, and become the basis of a judgment of a court of law, or can a party be bound by an obligation, which the law declares void ?
The agreement to postpone the payment of the price, being contracted on a potestative condition and consequently void, created no legal obligation to pay the interest, nor gave any right of action for its recovery. C. 0. 1750, 1753. To constitute the contract of rent, it is essential that the rentee should legally bind himself to pay the interest, or rent. Article 2750 of the Code, declares that the contract of rent for lands, is a contract by which one of the parties conveys and cedes to another a tract of land, or 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 to him.
If, therefore, the contract in this case is one of rent, we have before us a rentee in possession of the land conveyed, who has contracted no legal obligation to pay the rent, and against whom no action lies for its recovery.
Again. As a consequence of a contract of rent, the rentor has a right of mart-*550gage on the property conveyed, for the payment of his rent, and the rent itself is susceptible of being mortgaged by him. C. 0. 2762, 2763.
Now, if the obligation to pay interest in the contract before the court, is void, as a principal obligation, how can the accessory right of mortgage attach to it, or the rent stipulated to be paid by it, be susceptible of mortgage ?
The contract, therefore, viewed as one of rent, is wanting in an essential requisite, to-wit: a legal obligation on the part of the rentee to pay the rent, and a right of action, as a consequence on the part of the rentor. In the absence of these essential requisites, the contract cannot be interpreted or construed to be one of rent, and as such enforced.
It is to be observed that the purchaser did not even bind himself to pay the interest, but that it was agreed between the parties, that he should have the right to do so if he pleased, and thereby postpone the payment of the price. It is, therefore, difficult to affirm as a legal proposition, that the non-payment of interest would be a violation of his contract.
Whether the contract is one of annuity or sale, with a privilege granted to the vendee of postponing at his pleasure the payment of the price by the payment of interest in advance, it is unnecessary now to consider, as the agreement has been considered in argument as an annuity or rent charge. In my opinion, it is not one of rent, and therefore see no reason to reverse the judgment of the court heretofore pronounced, and to declare the contract one of rent, and not a contract of annuity.