Tha opinion of the Court was delivered by
Roché, J.This is an action to annul a donation inter vivos for noncompliance with the conditions imposed on the donee, and grows out of the following facts:
On the 21st of October, 1868, J. B. Eutch made a donation to the defendant of certain promissory notes amounting together to some $6256, held by the donor and due by J. D. Cantey, defendant’s husband. By the act of donation the notes were to be placed in the custody of a third . *791party, and were to be delivered to the donee, as her absolute property, on her fulfilling certain conditions, which were in substance as follows:
To provide for the donor and for a faithful servant of his, named Matilda Postian, a comfortable home, by building a house and outhouses of stipulated dimensions, on the property of the donee’s husband, and to provide said home during the lifetime of the donor and of his servant, to both of whom the donee was to furnish the subsistence of life to an amount not to exceed annually the interest at 8 per cent, on the amount of the notes donated; and that on the death of the donor and of his servant, and after a full compliance on the part of the donee with the conditions thus imposed, she- would be entitled to the full possession and ownership of said notes.
The donor died in 1872, but his servant is yet living. In his will, the donor entrusted E. N. Pugh, one of the plaintiffs herein, with the execution of his will, particularly charging him with the protection of his servant’s rights under the donation.
Charging that the donee had violated the conditions of the donation, but particularly in failing to furnish, since the year 1876, either supplies or money to the servant Postian, the executor, joined by two persons alleged to be legal heirs of J. B. Eutch, prays that the donation be dissolved, and that the notes be delivered to them.
Among other defenses, Mrs. Cantey excepts to plaintiffs’ action on the ground that the latter have failed to reimburse or tender to her, the • value of supplies and the money given and paid by her to Eutch and to the servant Postian since the date of the act of donation, which supplies and money amount to the sum of $8599 14; and that such payment or tender was a condition precedent to plaintiffs’ right of recovery.
This exception, which was tried with the merits, was maintained by the lower court, and plaintiffs appeal.
The proper solution of the question presented by this exception depends upon the nature or correct definition of the act which is sought to be annulled. It purports to be a donation of certain promissory notes, but is unaccompanied by the delivery of the objects given, which are placed in the custody of a third party, until the happening of an uncertain event, and the fulfillment of conditions depending, in a measure, upon the happening of the event; and it contains so many novel dispositions and conditions that a proper understanding of the instrument is not free of some difficulty.
But a careful examination of the act fully satisfies us that the primary object or motive of J. B. Eutch in the contract was, by means of the notes held by him, two of which were secured by mortgage and vendor’s lien on the property of defendant’s husband, to secure to himself and to his faithful servant, during their respective lifetime, a com*792fortable home and assured means of subsistence or living. The measure of the pecuniary charges imposed on the donee depended exclusively upon the number of years to be yet allotted to Futch and his servant; the test of the donee’s fidelity in complying with her obligations being definitely fixed at the death of the last survivor of the two beneficiaries under the act. In accepting the future ownership of the notes in question, Mrs. Cantey contracted a pecuniary obligation of an indefinite amount, the precise figure of which was concealed in the womb of time.
Under the stipulations agreed to, the amount to be contributed annually was to have reached at least five hundred dollars; and thus, if either beneficiary had lived twelve years from the date of the act, the pecuniary charges imposed on the donee could have reached the full value of the property given.
It appears from the record that, notwithstanding Mrs. Cantey’s alleged short-comings in the execution of her obligations, she has disbursed under the terms of the act the sum of $3599 14 in eight years, exclusive of the cost of building the home required by the act.
■ , Plaintiffs themselves not only admit, but allege that the “ governing motive” of Futch in making the donation was to secure to himself during his lifetime, and after his death to his servant, Matilda, during her lifetime, a comfortable living.
Viewing the contract under the construction most favorable to plaintiffs, we are irresistibly led to conclude that the value of the object given in the act did not manifestly exceed that of the charges imposed on the donee, and that, therefore, it was an onerous and not a real donation. C. C. article 1524; 3 An. 230; Dalloz, Jurisprudence Générale, 1851, case of Reyss.
Hence, as an onerous donation, it is not subject to the rules peculiar to donations inter vivos, O. C. article 1526; and the action for its dissolution must be governed by the rules relating to ordinary contracts. 31 An. 634; Marcade, vol. 3, § 704.
Under this rule every commutative and synallagmatic contract implies the resolutory condition, under which one of the parties has the right to demand the dissolution of the contract for the non-performance of an obligation by the other, and under which matters are placed in the same state as though the obligation had never existed. C. O. Arts. 2045, 2046.
This rule has been uniformly interpreted by our courts to require that a party demanding the rescission of a contract must return or offer to return the consideration received by him, and that this is a condition precedent to his being heard. 21 An. 425, Latham vs. Hickey; 6 R. 450; 5 R. 65; 2 R. 180: 4 La. 180; 2 N. S. 466.
Proceeding to apply this principle to the present case, we are met *793by a record which shows that defendant, after disbursing under the contract in favor of the donor and his servant considerable sums of money, and having yet reaped no benefit or advantage under the donation, is now sued with a view to cut her off from all claim to the property given to her,- under conditions faithfully executed by her during eight years, as admitted by plaintiffs themselves; and that they have not returned, or offered to return, the sums disbursed by her in favor of the beneficiaries under the onerous donation.
Law, justice and equity alike require that the dissolution of this contract be preceded by at least an offer on the part of plaintiffs to place Mrs. Oantey in the position which she would occupy had the contract never taken place.
Plaintiffs urge that, for two reasons, defendant cannot invoke the benefit of this rule.
1. They aver that they, the executor and the two alleged heirs, have received nothing from the defendant, and that, therefore, they cannot be held to the reimbursement of funds never received by them.
They evidently lose sight of the position which they assume in their pleadings, in which they act in lieu and stead of the deceased, seeking to enforce rights which he alone, if living, could demand; and seemingly forget that, as his legal representatives, they are amenable to all the defenses which could have been urged against him as plaintiff in a similar proceeding.
2. They urge that Mrs. Cantey has debarred herself from claiming any right under the contract by her judicial admission in a suit filed against her in 1878, by Matilda Postian, seeking to enforce the specific performance of the conditions of the donation. They charge that, in her answer to the suit, Mrs. Cantey, urging the impossibility of the conditions imposed by the donation, alleged the nullity of the same, and that on the issue thus raised and for the reason of such nullity, the judgment rendered in the case, which is now final, rejected plaintiff’s demand. They therefore urge that defendant is estopped from denying the nullity of the donation, thus leaving nothing for the Court to do in this case büt to judicially declare said nullity. Hence they have reserved a bill of exception to the ruling of the district judge in admitting, over their objection, evidence offered by defendant in proof of the amounts disbursed by her under the contract. A careful inspection of the record in that Postian suit fails to produce on' us the impression suggested by plaintiffs. In her answer defendant merely sets up her inability to pay ttfe amounts demanded of her, for reason of her want of funds, growing out of her legal inability to enforce on her husband payment of the interests accrued on his notes and remaining unpaid. True, the judge, *794in his reasons, strongly intimates the nullity of the contract; but he clearly says that such is not the issue before him, and in his decree he merely rejects plaintiffs' demand. He did not and could not decree the nullity of the act; and his judgment offers no impediment to the defense made by defendant in this case, which is not affected by defendant’s judicial admission in the other suit. The evidence was properly admitted and supports defendant’s allegations in her exception.
It is unnecessary to express-any opinion on the other defenses invoked by defendant.
It is, therefore, ordered, adjudged and decreed that the judgment of the lower court, maintaining the exception of want of tender, be affirmed with costs.
Rehearing refused.