Swan v. Gayle

Wyly, J.,

dissenting. I adhere to the former opinion of this court in this case. The right to dissolve the sale is either a principal or an accessory contract. It must fall in the one or the other of these classes. So far as the result of this case is concerned it is immaterial under which class the court places it.

If it is an independent or principal contract it can be transferred,, separate from the notes, at any time the owner sees fit to do so. It is-only accessory contracts that must pass by subrogation at the time of the transfer of the principal contract. By the notarial act of the iourthof September, 1869, Filhiol declares that at the time he transferred the-notes to Swan he intended not only to convey the notes and the mortgage and privilege to secure the payment, “but also his (Filhiol’s). right to have'the sale set aside for non-payment of, the price.” Here,, then, in September, 1869, Filhiol transfers or .donates, under the form, of a sale, his independent right or contract'(if such it may be called) to dissolve the sale. Yet the „court rules out of the evidence the-notarial act showing the transfer of what the court in the latter part of its opinion practically treats as an independent contract.

If the right to dissolve the sale be an independent contract, and the-finding of the court rests upon no other hypothesis, the transfer by *505authentic act of that independent right or contract was admissible, the lower court did not err in receiving it, and this court erred in ruling it out on this rehearing. In other words, in my judgment, this court ruled out the transfer of September 4, 1869, on the hypothesis that, being an accessory contract, it should have been made at the time of the transfer of the notes; and then turned round and decided against the enforcement of the dissolving condition on the hypothesis that it was not an accessory contract, but an independent contract which had not been transferred.

I repeat, that if the right to dissolve the sale be an independent contract, the transfer thereof by authentic act in September, 1869, was permissible, and the court had no right to rule out this authentic evidence of the transfer, unless the court should hold that this right is not transferable. I hardly imagine that a contract of this character will be considered personal and not transferable. This right is property, and all property is transferable, except such as is by law excepted from the general rule] that the'right of disposition or the right to sell is essential to perfect ownership.

Therefore, if the right in controversy is an independent right which the owner could transfer at any time, the plaintiff, the transferree of that right under the notarial act of September 4,1869, can enforce it.

But if the right to dissolve the sale be an accessory right or a remedy incident to the principal contract of sale, as I believe, the plaintiff, the owner of the obligation, can enforce it without an act of transfer or an act of subrogation. Now, the rule that “ a right which can not exist so long as another right exists, can not be accessory to the latter,” has no application to this case.

The right to dissolve the sale exists from the beginning or the date of the sale, but it does not become exigible -till the debtor of the contract is in default for the price.

The accessory contract of warranty exists from the day of the sale,, because of the nature of the contract, yet it is not exigible and never becomes so till the eviction of the purchaser occurs.

The right to dissolve the sale is, in my judgment, an incident of the contract of sale; it is an accessory contract with a suspensive condition but a perfect and complete one from the date of the sale, notwithstanding the suspension thereof.

I can not agree with tbe organ of the court that what was said by Judge Martin in Torregano v. Segura, 2 N. S. 159, was merely arguendo, expressions not necessary to the decision of the case, and therefore not authoritative. The decision speaks for itself. Upon the basis-that the dissolving condition is accessory to the principal contract of sale the court held that the plaintiff, the surety, who paid the debt became subrogated thereto, became the owner of the debt, the creditor. *506■of the contract, and as such acquired with it all the accessory rights, including the right to dissolve the sale.

For these reasons and those stated in the first opinion rendered by this court in this case, I respectfully dissent from the views expressed ■by the majority of the court.

Hoave, J.

In my opinion our decree should remain undisturbed. :By the transfer of the notes and the special assignment of Filhiol’s rights as vendor (both of which were subjects of transfer) the plaintiff became A'ested with all the rights of the original vendor. Duvergier’s Toullier, vol. 17, 275, citing Sirey 26, 2, 189; Dalloz 26, 2, 156; Sirey •23,2, 57; Rogron’s C. N. 1692; Paillet’s C. N. 422; Lahaye’s C. N. 1692; Torregano v. Segura, 2 N. S. 158.

There is no question of subrogation in the case, either legal or conventional, for there has been no payment, and without payment there •can be no subrogation. Rogron’s C. if. 1248; 1249 and 1250; C. C. of 1825, articles 2155 and 2156. The case is governed by the rules in ¡regard to sales. (