dissenting. In addition to what is said by Mr. Justice Land, and was formerly said by a majority of the court, there is another view which may be taken of this case. If the suit presents a case of rente fonciére, then the vendee incurred no personal obligation to pay the interest upon the $5,500, the price of the sale, independent of his possession of the property, but the obligittion to pay the interest was impressed upon the thing itself, and the vendor retained in its place a right upon the thing, a jus in re. Now, when we look at the contract, we shall find, that the vendee personally assumed the price of the sale. The language is :
“ The present sale is made for and in consideration of $5,500, which the purchaser binds himself to pay to the vendor in one year from this date, it being exr pressly agreed between the parties, that the purchaser shall have the right of prolonging indefinitely at his will, to him, his heirs or assigns, the reimbursement of the said sum of $5,500, by paying to the vendor, his heirs or assigns, and annually, interest at the rate of seven per cent, per annum, payable in advance, at the domicil of the vendor, or his heirs, any where in the parish ; for all which the purchaser hereby binds himself.”
Now, who bound himself to pay the price? The answer of the contract is, the vendee in person. When did he bind himself to pay the price ?
The contract says, in one year, or at farthest, whenever after that period, the interest shall not be paid in advance.
Then here, is unquestionally a personal obligation binding upon the vendor to pay the price of the property. He does not undertake to bind the land. Nothing is reserved out of the land. There is no partial dismemberment of the property, but the whole, the dominium, passes to the vendee. Hence, the vendor has retained no real right in the property, which he can sell or mortgage. All that he has is the personal obligation of the vendee to pay, (as he has promised,.) and á mortgage and vendor’s privilege to secure the payment of the price.
*551- A comparison of the contract under consideration, with each and all of the Articles of the Code on the subject of the rente fonciere, has failed to enable me to discover the essentials required for such contract.
Pothier says, that “ it is of the essence of the rente fonciere, that the vendor (bailleur) shall reserve in the property a right of annual and perpetual rent, if the contract is in perpetuity ; or for the time it ought to continue, if it is only made for a certain time."
In another place, he says : “ As in the contract of -sale, the price must be certain and determinate. So in the contract of reut charge, the rent which the vendor (bailleur) reserves in the property, must be certain and determinate. It is for this reason, that if it is said by the contract that such a piece of land is charged with a rent without saying for how much ; or if it is said that the property is charged with the same rent as it was formerly charged, and formerly it had not been charged with any rent; it is evident that there would be no contract of rent charge, in the one case or the other, and the contract would produce neither an alienation of the property, nor any obligation of the parties.”
“ The differences” (between rent charge and sale) “ are first, in this, in the contract of sale, the price can consist only in a certain sum of money, otherwise it would not be a sale, but some other contract, as we have seen in the contract of sale. On the contrary, it is not important that the rent should be of a sum of money. It may be a certain quantity of fruits or provisions. For example, so many quarters of wheat; so many puncheons of wine; so many pounds of butter,” &c.
“ The rent charge can also consist in a proportion of the fruits ; as the charge of giving to the lessor (bailleur) every sixth sheaf of wheat which shall be harvested, or so many gallons of wine for each puncheon which shall be secured. This kind of rent is called champart; it is a peculiar kind of rent of which we shall not treat in this place.”
“ A second difference is, that in the contract of sale the price consists in a single sum of money which is due, (or contracted for,) as a whole, at the instant of the contract, when even by the agreement of the parties, the payment has been deferred and divided into several terms. On the contrary, in the rent charge, the rent only takes its rise and is due by portions corresponding with the time which has elapsed from the possession of the tenant or his successors.”
“ In fine, the third difference, which is the main one, is that in the contract of sale, the price is the debt of the person and not of the estate which is sold, On the contrary, in the contract of rent charge, the rent which the landlord (bailleur) retains, is a charge in rem (charge réelle), which is imposed upon the estate, subject to the rent, and which is due principally by the estate, although the tenant and his successors may be also, by reason of the estate which they possess, personal debtors of the arrearages.” Pothier, Bail a Rent, Art. 2, sec. 1.
- As the definitions and distinctions of Pothier are principally adopted by our Oode, the explanations of this author show clearly what is intended by the Code in reference to the rente fonciere.
Again: Suppose the first or second year after this contract was entered into, that the property had been subject to a crevasse or some other calamity by which the value had been reduced to one-third, could the vendee have refused to pay the interest in advance, and then have escaped the payment of the price, which he had bound himself to pay, and have turned the vendor over to the depreciated estate for the price ? Suppose the vendee had divided the estate and *552made sale to several persons, and they had failed to pay the rent, would the vendor have been driven to several real actions against each sub-vendee ?
It seems to me, as explained in the former opinion of the court, that the ven-dee assumed a personal obligation, and that the annuity was formed from the price due in money for the sale of a tract of land.
I cannot forbear quoting another passage from Pothier, which explains the object of retaining the mortgage, as in this case. He says:
“ The rente fonciere is also a real charge very different from a mortgage with which an estate is encumbered, upon which an annuity established in consideration of money, or by gift or legacy, has been assigned. This mortgage is only an accessory obligation on the property, the better to assure the personal obligation of him who has constituted the annuity, or who has been charged with it by the testament. On the contrary, the charge of the rente fonciere with which the estate is charged, is a,principal obligation of the estate; it is the estate which is the principal debtor, rather than the person of the tenant, who is bound for the rent only, because he possesses the property, and because the charge of the property is of such a nature that the property can only be relieved of the rent by the act and agency of the possessor, who must pay the arrearages for the property.” Ib., chap. 2, sec. 3, No. 19.
Turning again to the contract, we And, as we said at the outset, the personal obligation of the vendee ; but where do we And any words equivalent to the reservation of rent? Or any stipulation that the property should pay any rent? Where are any words equivalent to a dismemberment of property or the reservation of any of the jura in re to the vendor ? What property then did he retain in the thing which he could sell or mortgage?
I see no reason to doubt the correctness of the former decree, and as the ven-dee bound himself personally and expressly, and as the term for the payment of the price has recently terminated by the condition, I think the former decree ought to remain undisturbed.