Heirs of Castle v. Floyd

Concurring in Part.

Bermudez, C. J.

This is an action for the resolution of sales, on account of the non-payment of the price.

It is brought by one of the heirs of Allen Castle and by a transferree - of the interest of the other.

*590■ The averments are that two tracts .of .land belonging to the succession having been sold to effect a. partition, the notes furnished were «divided among the heirs and the widow, the property passing from -the adjudica tee to Thompson & Freeman, who are made defendants; that the failure on their part to pay the purchase price justifies a resolution of the sales. The widow is not a party plaintiff.

The defense is a denial of the pretensions of plaintiffs; specially that, by his purchase of the interest of one of the heirs in the price of sale, the transferree, in the absence of an express stipulation, did not • acquire the right to ask the resolution on the ground of non-payment •of the price of sale; that even then, the right of action is barred by-prescription.

; The right to. enforce the resolutory action in a contract of sale is -peculiar .to the civil law and has been so rarely exercised in this State, by others than the vendor, that only two cases directly present the -interesting question : whether the right is transferred to the purchaser ■ of the claim without an express assignment of it.

In Torregano vs. Segura, 2 M. N. S. 158, the plaintiff was the en'.dorser of a note given for the piico of slaves and having paid it, -claimed as subrogee to the rights of the vendor, the dissolution of the sale and delivery of the property to himself. The Court say: “The subrogation is of the right of the creditor, not against the debtor only but also against the securities, and like a transfer of the debt it in-eludes everything that is accessory thereto as securityship, privileges, -mortgages. The rescission of the sale is a means of securing the pay-ment 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. The subrogation has the same effect.”

Swan vs. Gayle, 24 Ann. 498, was an action by the endorsee of notes «representing the unpaid price of property and the Court at first held that the action was maintainable on the authority of the Torregano case supplemented by George vs. Lewis, 11 Ann. 654, where it was said the resolutory action is a concurrent remedy with a suit to enforce the vendor’s lien. But on rehearing, the ruling was reversed, and it was held by a divided court (two dissentients) that the right to dissolve ' the sale is not an accessory of the notes for the unpaid price, and does not pass to a third party by the transfer of them. And in this last «opinion was cited Citizens’ Bank v. Cuny, 12 Rob. 279, where the Court said, the vendor’s privilege gives the seller a right to the rescission of -the sale on the non-payment of the price, and he by transferring the ■ notes parted with the accessory rights which vested in the plaintiffs as *591the holders of the notes. This was cited only to observe that it, as well as the passage quoted already from the Torregano case, was said •only arguendo and was not authoritative.

The expressions in both cases are pertinent and necessary to the •decisions, with such contrariety of opinion it is obvious that the question cannot be considered as settled by our own jurisprudence. As art. 2645 of our Kevised Civil Code is identical with art. 1692 of the ’Code Napoleon, it is natural to turn to the French commentators for light and guidance.

They are found differing as much as this Court.

Duranton holds that the resolutory action is not comprehended in a general cession, but only passes, by a special cession of it and cites "Sirey, Delvincourt and Dalloz. Code Civil Annoté, art. 1692, p. 749. However Dalloz does not support that dictum. On the contrary ho ¡affirms that, if the cession is general, without any restriction, it will comprehend the action in resolution unless it appears that the intention of the parties is to exclude it. This is his language; — “ Si le ■vendeur a cédé en termes généraux tons ses droits et actions contre Tacquéreur sans rien specifier mais sans faire non plus aucunc restriction, la cession comprend les actions en nullitó et en rescisión ou Tésolution, á moins qu’il n’apparaisse, d’aprés les circonstances, que l’intention commune des contractants a été d’exclure ces actions de la • cession. Paris Ed. 1874. Com. art. 1692 C. H.

Marcade argues with his usual dogmatic energy that the right to •dissolve the sale for non-payment is not even an accessory of the right to demand payment of the price and of course does not pass by a transfer of the notes that represent the price. Laurent opens his discussion with the statement that the question is very much controverted and there is some doubt about the true solution of it, but he adopts the •opinion that the right to dissolve the sale is not comprised in the ■cession of the obligation for the price. Authors are divided, he says, -as well as jurisprudence and the question is not settled. Droit Civil, to. 24, p. 529 § 535.

On the other band, Toullier says when the terms of the cession are -general and absolute it is impossible to admit any exception and all ■rights are transmitted to the cessionary, and as an example he adds that the right of a seller to demand the resolution of the sale on default of the payment of the price is ceded to him to whom he sells the •credit. Droit Civil Francois, to. 2 § 222, pp. 274-5.

So also Kogron concludes with reason that a cession of .the credit •that represents the unpaid price of an immovable includes the right *592to demand the resolution, of the sale. Com. art. 1692 C. N., and Solonis of the same opinion. Sur la nullité, to. 1. $ 450, p. 311. Gilbert in his Codes Annotés, p. 809, art. 1692 C. N. says a- general cession comprehends the rescinding and rescissory actions, and besides Solon, cites-as sustaining that opinion Dnvergier, Troplong, and Persil.

If the French commentators are equal in authority on both sides- and resort is liad to independent reasoning, it is not perceptible why the right to dissolve the sale for non-payment of the price should not pass to the buyer of the credit, as well as the right to enforce the payment of the price, throng'll the vendor’s lien, for why should the one he deemed to pass by a general transfer of the credit and not the other? Both are means of compelling the buyer to perform bisobligation. The buyer’s obligation is to pay the price or restore the property. The action to enforce the vendor’s lien compels the payment of the price, or failing that, the sale of the property, in order that the price may be realized. The action to dissolve the sale for -non-payment of the price compels the restitution of the property without the intervention or medium of a forced sale of it. If the one is. transferred by the transfer of the credit that represents the price- (and all authorities agree that it is) what reason in logic or in law can there be for holding that the right to dissolve the sale must be specially transferred or it will not pass by the transfer of the credit that represents the price. The French commentators, so acute in discerning refined distinctions and sometimes pushing them to the verge of metaphysical subtlety, divide on the question as each holds the right to he an accessory or not of the principal obligation, but where the vendor lias two remedies or rights, it appears inconsistent and technical to require a special transfer of one while the other passes by a general transfer..

It may be said that the right to dissolve the sale for non-payment of the price ought to be exercised by the seller and by no one else, for if he sells the credit that represents the price he has received the price of his property in the sum he gets for the credit. But this is an argument for the non-transferribility of the resolutory action. Now all the writers hold that the action is transferrible. The difference between them is that some hold the transfer must be special and others that it need not be.

Again, if tbe transferrer of the claim for the price does not transfer the right of resolution of the sale because of non-payment of it among his other vendor’s rights, the buyer of the property might he exposed to two actions by two parties — one by the transferree for the price, the *593other by the seller for the dissolution of the sale for non-payment and thus two suits might go on pari passu. Must judgment be rendered in each, or will one exclude the other? And will in the latter case the transferree or the seller be compelled to give way ?

While I consider that the right to sue for the resolution of the sale passes without special mention, I believe that it does not pass, where the entire claim for the price is not transferred and that it cannot be exercised, unless by the person or persons who represent the whole slaim.

As the entire claim is not represented in this suit, I think that plaintiffs’ demand must be dismissed.