On Rehearing.
Ludeling, C. J.This is a suit for the dissolution of a sale for the non-payment of the price.
On the eighteenth of July, 1859, H. Filhiol sold a house and lot in the town of Monroe to W. H. Gayle for $6050, for which four promissory notes were executed — one due January, 1860, for $2000, and three others each for $1350, due on the first of March in the years 1861,1862 and 1863. The first of these notes was paid by Gayle, and the other three were transferred to Joseph T, Swan by the following indorsement on the back of each : “ Without recourse, H. Filhiol.” On the ninth of February, 1867, suit was instituted against the succession of Gayle by the plaintiff in this suit for the amount of the three notes held by him, which was dismissed for want of jurisdiction ratione material. 21 An. 478. And then this suit was instituted, -after first procuring from Filhiol what the plaintiff calls an act of subrogation, which recites that he had “heretofore transferred and delivered to J. T. Swan” the said notes, and that “ it was his intention to transfer to him, with said notes, *502all the rights said Filhiol had against Gayle growing out of said purchase of the above property from Filhiol, and not only subrogate said Swan to all his (Filhiol’s) rights in and to said notes and the mortgage and privilege to secure their payment, but also to said Filhiol’s right to have the sale set aside for the non-payment of the price,” ete. This act was passed on the fourth of September, 1869, about two years after the transier of the notes to Swan. To the reception of this document the defendant objected, on the grounds that it was res inter alios acta; that it was an attempt to introduce in evidence against him the unsworn declarations of Filhiol, and without affording him an opportunity to cross-question him; and that it was an attempt to contradict, vary and explain the transfer in writing on the back of the notes. These objections, we think, should have been sustained. 22 An. 322; 23 An. 589, 445. But if the act were properly in evidence it would not materially change the facts. Filhiol could not subrogate Swan to anything which did not pass at the date of the sale of the notes. 5 R. 207; 19 R. 477; C. C., article 2160.
The questions presented for solution in this case are important, and two of them we think have never been directly decided by this court, to wit: Whether the right of the vendor to dissolve the sale for the non-payment of the price can be sold by him, and whether that right is an accessory to the notes evidencing the unpaid price? We do not deem it necessary in this case to pass upon the first question, as there evidently was no sale of this right, unless it passed to Swan as an accessory to the notes acquired by him. Two cases have been referred to in which expressions are used by this court which would indicate that the court considered that right to be an accessory of the notes. In Torregano v. Segura, 2 N. S. 158, the court said: “The rescission of the sale is a means of securing the payment of the price, which the vendor, the creditor of the price, has; this right is an accessory of the claim and would pass by the sale or transfer of it.” In the case of the Citizens’ Bank of Louisiana v. Cuny and others, the court said : “ The vendor’s privilege gives.to the vendor, in addition to the right to have the property sold to pay the price, a rank in relation to other creditors of the vendee which he might not otherwise have. It confers upon the vendor a right to the rescission of the sale on the nonpayment of the price.” 12 R. 281. In both cases, however, the expressions were used arguendo. The question before the court for decision in those cases did not require the decision of this point. In the latter case the only question presented was 'whether the cancellation of a special mortgage given to secure the payment of notes for the price for lands destroys the vendor’s privilege to secure said notes.
In the case of Segura there was no sale or transfer of a note or credit. The surety who had signed the notes with the vendee, and *503who had paid the notes, 'asserted by that law he was subrogated to all the rights of the vendor.
On the other hand, in the case of Johnson v. Bloodsworth, the court used the following language: “But it is impossible to confound the resolutory action with the vendor’s privilege. The former is not a mere appendage of the latter.” 12 An. 699. And this also was said arguendo, for the question beiore the court was: “When the vendee of a slave, holding by private act unrecorded, has mortgaged the slave to a third person by public act duly registered, can the unpaid vendor enforce the implied condition against this vendee to the prejudice of the mortgage creditor of the latter 9 ”
These expressions ought not to be regarded as authoritative, and we will treat the question as a new one not adjudicated upon by this court.
“ The sale or transfer of a credit includes everything which is an accessory to the same.” C. C. 2645. “A principal contract is one entered into by both parties on their own accounts, or in the several qualities they assume. An accessory contract is made for assuring the performance of a prior contract, either by the same parties or by others; suchas suretyship, mortgage and pledge.” C. C. 1771. The accessory obligation or right, then, is something which may aid to enforce the principal obligation; if the principal obligation is -extinguished the accessory right ceases to exist also.
The action for the resolution of the sale implies and presupposes the renunciation of the right to demand the payment ot the price. “If the buyer does not pay the price, the seller may sue for the dissolution of the sale.” C. C. 2561.
“ Now, a right which can not exist so long as another right exists, can not be an accessory of the latter.”
Mr. Marcadé says:
“ Loin que le premier droit soit l’accessoire du second il ne coexiste méine pas avec lui, il ne lui est pas concomitant, il ne p end naissance qu’aprés qué celui-ci a cessé d’exister: la demande en résolution implique et presuppose la renonciation au droit de demander paiement, la renonciation á la cróance; ou, un droit qui ne peut pas exister tant qu’existe un autre droit ne peut certes pas étre l’accessoire de celui-ci.”
Marcado, vol. 6, p. 334, commenting on article 1692 Mr. Duvergier .says, No. 222, p. 259:
“Que le vendeur payé en billets, en transmettant ces billets á un •tiers, lui céde le droit d’exiger le'paiement et aussi le privilége; c’est-a-dire, le droit d’étre payé par préférence, ruáis ne lm cede pas Vaction en résolution de la vente, parce que cette action n’est pas Taccessoire du droit Wexiger le paiement; elle suppose, au eontraire, le non-paiement.”
What did Eilhiol sell to Swan? Three notes with the accessory *504rights of mortgage and vendor’s privilege to enforce their payment— nothing else. And Swan acquired no other right from Filhiol than such as are necessary to enforce the payment of those credits or debts. The right attempted to be exercised in this case is certainly not to collect those notes.
Suppose Filhiol had sold the property for less than half its value, could it be pretended that in buying the notes given for the price Swan acquired Filhiol’s right to rescind the sale for lesion beyond moiety ? He did not buy all the rights of the vendor resulting from the contract of sale to Gayle, but only the notes with their accessories-He did not by buying the notes take the place of Filhiol in the contract of sale, else the purchaser of a negotiable note, given for the price of property, would become the warrantor of the title to the property. A proposition which leads to such an absurd conclusion ought not to be sustained by a court of justice.
This view of the case renders it unnecessary to pass upon the questions of default, tender and prescription raised in this case.
It is therefore ordered and adjudged that the judgment of this court heretofore rendered in the case be set aside, that the judgment of the court a qua be reversed and annulled, and it is decreed that there be judgment in favor of the defendant rejecting the plaintiff’s demand, with costs of both courts.