ON REHEARING
LeBLANC, J.Our further consideration of the question raised under the exception of no cause of action, in this case, leads us to the conclusion that our former judgment was erroneous. The judgment of the lower court which sustained the exception was. correct and should have been affirmed.
The only issue is that involved in the effect that is to be given to the escrow agreement entered into contemporaneously with the act of sale from Aurelius Montet to the plaintiffs herein, T. Aucoin & Sons. That agreement is quoted in full in the original opinion (132 So. 133) which we rendered. Granting that it is properly before the court, and that the question of its admissibility in evidence is no longer an issue, we are now of the opinion that'the case was properly disposed of by the lower court on the exception of no cause of action.
- Counsel for the plaintiffs contend that we have before us all the essentials of a valid contract of sale,'which proposition is not questioned. There is no doubt a binding agreement between ■ these plaintiffs, and Aurelius Montet which can be made the subject of specific perfQrmance. With the escrow agreement before us, however, which shows on its face that the purchase price agreed, on has not passed as yet to the vendor, but is held in a bank subject to further instructions, from the notary before whom the purported act of sale had been passed, we are constrained to hold that the, ownership of the land has not passed to these plaintiffs and they can exercise no dominion over it. If they have not the capacity of owners and have no dominion over the property, then they are without right to maintain a petitory suit against this defendant, who apparently holds under a deed which on its face is translative of property. The decision in the case of Peck v. Bemiss, 10 La. Ann. 160, is controlling on this point and supports the ruling of the lower court on the exception. It is true that in this ■ case there was an authentic act of sale executed by the parties, but that deed has to be construed in connection with the escrow agreement entered into simultaneously with it, and when that is done, there results the same form of agreement as is found in the case of Peck v. Bemiss, supra, which the Supreme Court held constituted merely a promise of sale under which the ownership of the property did not pass. The wording of the escrow agreement in this case and that of the agreement between the parties in Peck v. Bemiss inay be different, but in substance their meaning is the same. The effect of both is to show that the purchase price agreed upon has. not been paid, and will not pass to the vendor until there is an assurance that lie can *648transfer possession. Under a condition such as this, there results only an agreement to sell which can be enforced, but no sale in which title, possession, and control and dominion over the property passes. The principle that no complete title under which the purchaser may be said to be the owner of the property passes until he has paid the purchase price seems, to be well imbedded in óur jurisprudence. It is derived from article 2487 of ithe Civil Code which reads as follows:
“The seller is not bound' to make a delivery of the thing, if the buyer does not pay the price and the seller has not granted him any term for the payment.”
We find an interesting history of the development of the principle stated under the articles of our Code in the case of Lapene v. Badeaux, 36 La. Ann. 194, wherein we are told that it comes to us from the Code Napoleon, being embodied in article 1612 of that Code. A similar provision exists in the Spanish law, “which like the French, once prevailed here.” As stated further, .the principle is found in Patrida III, tit. XXVIII, law 46, where it is expressed in these words:
“The property in the thing sold will not pass to the buyer until he has paid the price thereof.”
The theory has its origin in the Roman law, and, as “finally consecrated by our law has been applied by.the courts. Washburn v. Green, 13 La. Ann. 332; Doll’s Heirs v. Kathman, 23 La. Ann. 486; Mazoue v. Caze, 18 La. Ann. 31; Losee v. Sauton, 24 La. Ann. 370; Haynes v. Breaux, 16 La. Ann. 142; Hills v. Jacobs, 7 Rob. 406; Osterberg v. Union Trust Co., 93 U. S. 424, 23 La. Ed. 964.” To these may be added Wells v. Blackman, 121 La. 394, 46 So. 437; Kessler & Co. v. Manhein, 114 La. 619, 38 So. 473; and Centreville Bank v. Boudreaux et al., 133 La. 75, 62 So. 412.
Counsel for plaintiffs questions the right of the defendant in this case to challenge the validity of the act of sale between the parties to it, claiming that he is without interest to do so. But the plaintiffs themselves, and their vendor, in the agreement of escrow, recognize the fact that Paul Triche is in possession of the property, and he is so alleged to be in the original petition filed by the plaintiffs. Then, on a showing made by Triche that his possession is as agent for his father-in-law, Napoleon Young, and that Young is the real party defendant, the plaintiffs voluntarily come into court and ask that the ■ latter be substituted as defendant in place .of Triche whom they had at first cited. Moreover Young’s answer sets up title to the property which he alleges is derived from the same author under whom plaintiffs claim. We are of the opinion, therefore, that he has shown much interest and is in a position, at least as possessor of the property, to challenge the rights of the plaintiffs under their alleged sale from Aurelius Montet. It is elementary, besides, that in an action of this kind, the plaintiff has to rely on the strength of his own title and not on the weakness of his adversary’s.
All of the foregoing considerations convince us, as already stated, that we were in error in our former opinion and that the judgment and decree rendered should be set aside and annulled.
It is therefore now ordered that the judgment and decree herein handed down on January 26, 1931, be and the same are hereby set aside and annulled, and it is further ordered that the judgment of the lower court, sustaining the exception of no cause of action, and dismissing the plaintiffs’ suit, be now affirmed.