On Rehearing.
Ludeling, C. J.The plaintiff, as curator of the vacant succession of J. R. J. Daniel, instituted this suit against the defendant, the curator Of the succession of Junius Daniel, in order to set aside the sale of a large tract of land situated in the parish of Caddo, made by J. R. J. Daniel to said Junius Daniel on the second of April, 1859, on account of the non-payment of the purchase price. Plaintiff alleges that the consideration of said sale was the five promissory notes of the said Junius Daniel, and that no payment whatever has been made thereon. He files said notes as a part of his petition, and prays for dissolution of the sale and the restoration of the lands to the succession of J. R. J. Daniel.
Mrs. P. W. Daniel intervened in the suit as the surviving widow in community of J. R. J. Daniel, deceased, and attacked the sale on the-, ground that it was null and void in law', because it was in fact a donation in disguise of real estate belonging to the community existing; between herself and her said deceased husband, and was intended to-deprive her of her just rights in said community property. She prays, for an annullment of the sale and the restoration of the lands to the succession of J. R. J. Daniel, and for a recognition of her community-rights, subject to administration.
*541Defendant in his answer “admits that on the second day of April, 1859, Junius Daniel purchased, by public act passed before Thomas H. Pitts, recorder of Caddo parish and ex offido notary public, certain lands and negroes, for which he executed his five promissory notes, ea<¿i for the sum of three thousand dollars, with six per centum interest thereon from date; said notes being of even date with said act of sale, and severally due one, two, three, four and five years after date; to which act of sale special reference is made for greater certainty, and is hereto attached and añade part hereof.” Defendant further answering, avers that the notes given for the purchase price became the property of Junius Daniel, and after his death fell into the hands of his administrator, J. R. J. Daniel; and further answering, pleads the prescription of five and ten years.
The answer of defendant to the petition of intervention is a general denial.
There was judgment for the plaintiff, dissolving the sale and recognizing the intervenor’s community rights in the property restored to the succession.
From this judgment the defendant has appealed.'
The principal question for solution in this case, on the rehearing, is whether an action for the dissolution of a sale for the non-payment of the price can be anaintained if the notes given for the price be prescribed1? We have just decided, in the case of Joseph T. Swan v. Ann L. Gayle, administratrix, that the right to dissolve a sale for the nonpayment of the price is not an accessory of the notes given for the price, and has no connection with them, it is a distinct and independright conferred by law not to enforce the payment of the price, but to recover hade the land for the non-fulfillment of the obligation of the buyer. It is chiefly when the collection of the notes can not be enforced that this right is valuable. It is based upon the equitable principles that “ no one shall enrich himself at the expense of another,” and that when one party to a contract fails to discharge the obligations assumed by himself, the other party has a right to be released from Ms obligatioaas growing out of the contract.
“ Cette doctrine place le vendeur dans une position extrémement favorable: il peut presque sans peril, négliger son action en paieanent et le privilége qui s’y trouve attache; car s'il perd leprix, il reprend/ra la chose gnfaisant réscindre le contrdV Duvergier’s Toul. Droit Civil, vol. 9, No. 442; liv. III. tit. VI de la Vente. And the same learned jurist adds, at No. 443 : “ Apres avoir montré que les droits dont est aripé le vendeur sont indépendants, en ce sens que la nógligenee en l’abandon de l’un n’a point d’influence sur l’existence de l’autre; il faut voir comment et daais quels cas la demande en paiement serait un obstacle a la demande en resolution et réciproquement.”
*542If, then, the right to sue for a dissolution of the sale be a.distinct and independent right, having for its object something totally different from the enforcement of payment of the notes, we fail to perceive why that right should be affected by the prescription of the notes. In faeh it has been repeatedly held by this court that the right to sue for a dissolution of the sale on account of the non-payment of the price was prescribed by ten years. George, curator, v. Lewis, 11 An. 655 ; 1 An. 442, James v. Crocker ; 16 An. 129, Hunter v. Williams ; George v. E. A. Knox, Husband et al., 23 An. 355. C. C. 3508.
These decisions would seem to indicate also that the right to sue for a dissolution of the sale was not an accessory of the note, otherwise the prescription or extinction of the accessory would depend upon the extinction of the principal obligation. The question of 'registry is not involved in this case, and the inconvenience alluded to in argument was noticed and disposed of in the case ot Johnson v. Bloodworth, 12 An. 701. In that ease this court said, “Registry laws are artificial rules — the creatures only of positive legislation. * * •* They have seldom if ever been extended by judicial construction to cases not within their plain and obvious intendment.”
We are satisfied that we fell into error in our former opinion in this case in noticing the fact that the notes were prescribed, when that fact was not pleaded, as well as in holding that the right to sue for the dissolution of the sale was an accessory to the notes and perished with them.
The dissolution of the sale will restore the property (o the vendor or owner, which in this instance was the community of acquets and gains existing between J. R. J. Daniel and Mrs. P. W. Daniel. C. C'.„ art. 2045.
It is therefore ordered and adjudged that the decree heretofore rendered by this court in this cause be set aside, and it is decreed that the judgment of the lower court be affirmed, with costs of appeal.