dissenting. I think both the grounds upon which the opinion of the majority of the court is based, are erroneous.
The first is, that the action to dissolve this sale has been barred by the prescription of ten years; and the second is, it should not be dissolved, because the plaintiff has not restored or offered to restore to the purchaser the $7000 received as part of the price. As to the second ground, it has not been pleaded by the parties; it was not an issue presented in the court below. Besides, it is nothing but a dilatory exception, tending merely to delay, not defeat the action, and ought always to be pleaded in limine litis.
I do not think the plaintiff should lose his case because he has ■omitted to prove that he offered to restore the price which the defendants’pleadings did'not require him to do; and I do not think it proper to decide, as a matter of fact, that the plaintiff did not offer to restore the price, an issue upon which no evidence was taken and upon which the parties did not go to trial in the court below.
The dissolving condition, based upon the rule of equity, there can be no obligation without a cause, underlies every commutative contract; ■and it was upon this fundamental condition that Evan George, the plaintiff, transferred to his vendee, Mrs. Knox, his valuable property in the parish of Carroll, for $31,000 on long terms of credit, and upon this condition George bound himself to warrant and defend the title
It would be a violation of that great rule of equity if Mrs. Knox and her vendee are permitted to keep the property and hold George to his obligation of warranty after violating her obligation to pay the price; and if George bo held to his obligation without an equivalent as to him, there will be an obligation without a causo. (
The sale was made in 1855, and the installments were, $4000' payable first of M arch, 1856, $3000 on the first of March, 1857, and a like sum payable annually thereafter until the first of March, 1865. The promissory notes were given in evidence of the price, and only the first and second have been paid. The action to dissolve the sale is based upon eight of these promissory notes for $3000 each, maturing annually from the first day of March, 1858, until the first day of March, 1865. In May, 1868, the plaintiff instituted this suit, demanding the dissolution of the sale on the ground that his vendee, Mrs. Knox, had violated her contract by failing- and refusing to pay each of these eight notes.
I think tms action is based upon eight violations of the contract by said vendee, each of which being a good ground to annul the sale.
*357The engagement of tlie vendee was not to pay the first, second or third note only, it was to pay each note at its maturity. The obligation to pay the last note maturing the first of March, 1865, was just as binding as it was to pay the first; and failure or refusal to pay the last violated the contract just as much as the first. At each violation a right of action arose upon that instrument to demand the recision of the sale.
When the plaintiff demands it on each of tlio eight notes in the record, failing to pay each being a violation of the contract, why should we select the first note maturing in March, 1858, and decide his action is based only on that note and not on the other seven ? And because the action on that note, or for the violation of the contract in failing to pay it, is barred by the prescription of ten years, therefore the action is barred on the other seven also, although neither of them were ten years past due when this suit was instituted
When the plaintiff complains of eight distinct violations, and shows it in the record, how ean we say there has been only one violation, the failure to pay the note due March 1, 1858, which gave him a cause of action, and that is barred by the prescription of ten years. Suppose the plaintiff, anticipating this ruling, had made a voluntary remission of the note maturing the first of March, 1858, which would have discharged it, and then demanded the recision on the other seven notes to which the prescription of ten years is not applicable, could the action have been defeated by the plea of prescription ? Certainly not.
Now, shall we say that a man whohas merely exorcised a legal right,, who has voluntarily remitted one note, stands stronger before the court in prosecuting his rights upon the others, than if he had chosen to be less liberal to Ms delinquent debtor 1 Suppose the note due the-first of March, 1858, had passed into the hands of a person who had imrmitted the prescription of five and ten years to be acquired, would the defendant be heard disputing the fact that she violated her contract, in not paying each of the other seven notes held by the plaintiff, or that he has no right to' claim the recision, because the party holding, the note due March 1, 1858, did not do so ?
If such be law, the great rule of equity, there can be no obligation without a cause, is defeated without a reason why it should' be defeated.
Why should the vendee hold the vendor to his obligation after refusing to be bound by Ms own, simply because one of the notes fell into tardy hands, and has been permitted to be prescribed ?
Should Mrs. Knox escape the dissolving condition claimed by her vendor, simply because the note due March 1, 1858, has been barred by the prescription of five and ten years, when the record shows that' *358there are seven other notes which are not prescribed; at the maturity of eacli a right of action arose, to enforce the nayment or demand the recision of the sale.
Because the plaintiff has lost his right upon one note by lapse of time, I do not see that he has lost it on the other notes to which the plea of prescription is not applicable.
I therefore deem it my duty to dissent in this case.