Plaintiff alleges in its petition that on August 20, 1929, it acquired by authentic act of sale recorded August 21, 1929, in the book of conveyances of the parish ■ of St. Mary, a lot of ground from Aureluis Montet, who, it is averred, acquired title thereto by act of donation in 1904, from his. mother, Mrs. Gauthreaux, also, duly recorded; that Paul Triche, a resident of St. Mary, is in actual possession of the property without any title whatsoever thereto* on whom plaintiff immediately after its acquisition served notice to vacate the premises, but which he refuses to do.
Other allegations are made, but are left out of this opinion, not being pertinent to the issue presented for decision.
In his answer to plaintiff’s petition, Triche disclosed the fact that he held possession as tenant of Napoleon Young, who claimed to be owner, and who was substituted as defendant in the place of Triche, the latter intervening in the case on a claim for improvements he had made on the property.
Upon a motion for a writ subpoena duces, tecum filed by defendant, Napoleon Young, the following escrow agreement between plaintiff and Aureluis Montet, its alleged vendor, was produced, to-wit:
“Know all men by these presents: That T. Aucoin and sons, a commercial partnership composed of Joseph S. Aucoin and Albert N. Aucoin, residents of the parish of St. Mary,' Louisiana, and herein acting through and represented by Albert Au-coin; and Aureluis Mpntet also a resident of the Parish of St. Mary. .
“That T. Áucoin and Sons having this day by act of sale before L. O. Pecot, Notary Public, for the Parish of St. Mary, acquired a certain lot situated on the Public Road along the West bank of Bayou Boeuf and which said lot was acquired by Aureluis Montet in an act of donation from his mother, Mrs. M. A. Gauthreaux, and whereas the vendor has to deliver possession of the above described property to the vendee herein.
“It is agreed that until the said T. Au-coin and Sons obtain possession of said property from the present occupant; Paul Triche, whether the same be obtained by amicable delivery or by judicial proceedings, that the purchase price of $75.00 paid by the said Aucoin and Sons should re"main in escrow in the hands of the People’s State and Savings Bank of Morgan City, Louisiana; the purchase price to remain in escrow until the bank should have been informed in writing by L. O. Pecot to deliver said check to the said Aureluis Montet or his heirs.”
Upon the production of the foregoing document, Young and Triche filed an exception of no right and no cause of action, which was sustained below, and the suit was dismissed.
Plaintiff appeals.
In substance, the contention of defendants is that, under the stipulations of the contract, above reproduced, there was not a translation of the ownership of the property from Montet to plaintiff, who has therefore no legal title thereto, and consequently cannot bring this, a petitory action.
Judging from the citations of counsel for defendants, we understand their defense to be that the escrow agreement showed that there was not a sale, but a mere promise of sale, and hence there has been no transmission of title from Montet to plaintiff. *644This contention, we understand, is. based on the stipulation in the escrow agreement that the purchase price of $75 should remain in escrow in the hands of the Bank of Morgan City until plaintiff obtained possession of the property from Paul Triche, then the occupant; the position of defendants being that, until the price was paid, ■there could be no transfer of ownership to plaintiff, and hence no divestiture from Montet in whom the title remained.
Counsel for defendants cite Peck v. Be-miss, 10 La. Ann. 160, as the leading case on that proposition. In that case the land was sold “at ten dollars per acre; one-■third of which is to be paid cash, when possession is given, and the balance in one and two years,’’ etc. The court in commenting on that contract, said that Over-ton, who appeared as vendor through Sims, an a'gent, had “engaged himself to sell the land to Peck at a future time, and Peck engaged himself to purchase it when possession should be given, on the terms, of cash and credit designated in the instrument.” The court said that, until there was a voluntary execution of the agreement by Oyerton, or a forced execution “of the promise, the ownership did not pass to Peek.”
The court then enters into a discussion of the legal effects of a promise of sale, and quotes Marcade on this question where he justly remarks, says the decision, that:
“La promesse de vendre vaut vente, e’est a dire, oblige á passer le contrat.’”
In the Peck case, above cited, it will be noted that Peck bound himself to pay the one-third cash oí the price “when possession is given.” Possession, before payment of the cash, was made an essential stipulation of the contract.
In the escrow agreement above referred to it will be observed that it says that plaintiff, by a notarial act of sale passed the same day, had acquired the lot in contest. The agreement also says that the purchase price of $75 paid by plaintiff, Au-coin & Sons, should remain in escrow with the bank until notification by Pecot to deliver the check to Montet.
The escrow agreement, it will he seen, says until Aucoin & Sons, plaintiff, obtained possession from Triche, occupant of the premises, the purchase price should remain in escrow in the bank. There is. no stipulation, however, that the check of $75, the purchase price for the lot as fixed in the escrow agreement, should be paid when “possession is given,” which is the distinctive feature in the case of Peck v. Bemiss, supra, which evidently gave it the character of a promise of sale.
Counsel for defendants refer to other decisions in line with the Peck case, and which we find unnecessary to discuss in passing on this issue.
Let us suppose in the instant case that Triche had removed from the premises, and that Montet, claiming to have delivered possession, brought suit against plaintiff if the latter refused to pay the price. The demand of Montet could not be for anything else than for a dissolution of the sale or for the purchase price. Evidently, if brought on the resolutory condition for a rescission, the contract would be stamped as a sale. On the qther hand, if he sued for the purchase price and recovery was obtained on that demand, it is manifest that no decree would be needed requiring the execution of a sale to plaintiff to transfer ownership and possession, for the obvious reason that there had been a sale, and duly recorded, which being by *645public act for an immovable, carries tradition or aelivery. Civ. Code, art. 2479.
Counsel, in support of the contention that plaintiff did not acquire title, refer to Capital Building & Loan Association v. Northern Insurance Co., 166 La. 179, 116 So. 843; and to Lapene v. Badeaux, 36 La. Ann. 194.
The case in the 166 La. refers to judi-^ cial sales, where it has .been uniformly held that the adjudicatee must comply with the terms of the adjudication or else he is considered as never having been the owner. The same ruling is found in Lapene v. Badeaux, 36 La. Ann. 194.
These decisions hold that, where there is a refusal or a failure to pay the purchase price by the adjudicatee, he does not become the owner by the adjudication.
Conceding that the same rule applies in private sales, the escrow agreement in question does not show or indicate in the slightest degree that there was either a refusal or failure to pay the price by Au-coin & Sons, plaintiff and purchaser. On the contrary, it appears from the terms of the agreement that a check was deposited in the bank for the price which was. to be delivered to Montet on the written order of Pecot.
The defendants are undertaking to champion the supposed rights of Montet in urging the defense that he has not received the price for his lot of ground, while it appears from the allegations of plaintiff’s petition, which must be accepted as true under the exception, that Montet has made an authentic sale of his property which is now on file in the public records of the parish of St. Mary. •
In West v. Negrotto, 52 La. Ann. 381, 27 So. 75, the court held that defendant in a petitory action can set up an outstanding Title in a third person, but such title must be a valid, legal, subsisting title, better than that of the plaintiff.
Under plaintiff’s averment that he acquired the lot by an act of sale duly registered on the public records of the parish of St. Mary, and that the price had been paid and was deposited in escrow, all of which must be taken as true under the exception, it would scarely be logical to hold that Montet has an outstanding title legal, valid, and better than that of the plaintiff. In such a situation it must be held that the respective rights to that title which defendants are seeking to challenge is a matter which concerns plaintiff and Montet, and which cannot be. taken advantage of by defendants in a petitory action. Leathem & Smith Lumber Co. v. Nalty, 109 La. 325, 33 So. 354.
Counsel for defendants may contend that the decisions above cited apply to contests by defendants in a petitory action in reference to relative nullities, but that their defense is that the pretended .sale, as shown by the escrow agreement, was absolutely without effect as to transmission of ownership to plaintiff; that this involves an absolute and not a relative nullity. For the reasons hereinabove' given, we find that there was a sale, and not a mere promise of sale, under the alleged sale and escrow agreement which evinces a translation of ownership, and that therefore there is no merit in the contention of defendants to support their exception under their plea that the nullity referred to is absolute. Our ruling applies whether the defense be grounded on relative or absolute nullities.
Counsel for defendants refer to the case *646of Dover v. Atlas Assurance Co. of Lon. don, England, S. R. vol. 130, No. 10, Dec. 18, 1930, p. 828. In that case a deed be? tween Dover, plaintiff, and McDaniel was placed in the Sabine State Bank at Many, La., with a letter attached to the deed, as follows :
“Herewith annexed is deed from J. Dover to J.' L. McDaniel, which is. deposited with you to be delivered to said J. L. McDaniel, upon payment by him, of the sum of $12,000.00, which amount is to be placed to. the credit .of J. Dover, Florien, Louisiana.
“Signed, J. Dover
“J. L. McDaniel.”
In that case McDaniel failed to pay the $12,000, and the court held, under the facts, as therein presented, that there had been no sale or transfer of ownership.
. In commenting on the evidence, the court said:
“We have the uncontradicted testimony of both .the vendor and vendee that delivery of the deed should be concurrent with the payment of $12,000.00, and the further evidence of the written letter to that effect attached to the deed.”
Further the court says:
“And the failure to pay the price and receive the delivery of the deed fails to change the ownership of the property.”
This is not the situation here, where it clearly appears by the escrow agreement that the price was paid by check placed in the bank where it was to remain in escrow subject to the written order of L. O. Pecot, and where it is shown also that Montet had, by authentic act of sale duly recorded, transferred ownership of the property to plaintiff.
In order to get at the meaning of the parties so as. to make a correct application of the principle of law which should govern this case, it is proper to refer to the wording of the escrow agreement where it says that: “It is agreed that until the sa5d T. Aucoin and Sons obtain possession of said property from the present occupant, Paul Triche,” whether obtained amicably or by judicial proceedings, the purchase price of $75 paid by the said Aucoin & /.Sons shall remain in escrow in the hands of the bank. This stipulation in the escrow agreement shows that plaintiff had taken upon itself to obtain actual possession from Triche, amicably or judicially. The suit by plaintiff herein shows that it undertook to obtain that possession by judicial process from Triche which by the allegations of the demand plaintiff considered a mere occupaht or trespasser.
The vendor of the plaintiff, Aureluis Montet, had certainly done as much as was in his power to transfer his possession to the lot by the authentic act of sale which he had permitted to be spread on the public records, and also his ownership therein by that deed. It was-, not possible, for him to do more for the transmission of title thereto.
The contract, as. appears by the escrow agreement, imposed on plaintiff the duty of obtaining the actual occupancy of the premises from Triche. This part of the agreement created reciprocal rights and obligations between Montet and plaintiff, in case plaintiff failed by negligence or from some other unjustifiable cause to obtain that possession, amicably or by judicial process, if it could not be otherwise arranged. On the other hand, if posses: sion was obtained by one method or the other, as directed in the contract, and plaintiff refused to order the delivery of the check by the bank, in either contin*647gency above pointed out, plaintiff and Montet would be the only parties concerned. Such issues cannot be taken advantage of by defendants in a petitory action under the authorities above cited to which the issues of the case logically revert. The contract between Montet and plaintiff was a sale, and was not a promise of sale or other contract, as above stated.
Por the foregoing reasons, we hold that the exception of no cause and right of action was improperly maintained.
It is therefore ordered, adjudged, and decreed that the judgment be avoided and reversed, that the exception be overruled, and the case be remanded for trial on the merits, and be proceeded with according to law; appellee to pay the cost of appeal, those of the lower court to await the final decision of the case.