(dissenting). Triehe, the first defendant, filed an exception of no right or cause of' action, which was overruled. This ruling is not questioned.
Triehe then filed an answer putting at issue plaintiff's alleged title, alleging among other defenses that plaintiff had not paid the price ’of the land to Montet.
Triehe, tenant of Young, retired from the defense and Young tdbk his place as defendant.
Mr. Young filed an answer admitting that plaintiffs had bought the property from Montet, but denies that their title is good, because of non-payment of the purchase price to Montet; admits that Montet had title from Mrs. Gauthreaux, but urges that Montet’s title is in the form of a donation inter vivos; that defendant’s title is superior to plaintiffs’, for the reason that Mrs. Gauthreaux, the common author, after donating the property to Montet, sold the same property to Ross, defendant’s author, and her title to Ross was recorded in the conveyance book before the donation from her to Montet was. recorded in the book of donations.
The averments in the petition of the plaintiffs and in the answer of Young forms the issue between the parties, the new matters alleged in the answer of the defendant being regarded as denied by the plaintiff. Codg Prac. art. 329.
Before the case was fixed for trial, the defendant, under subpoena duces tecum, obtained from plaintiffs an escrow agreement which had been entered into between them and Montet. This escrow purports to support defendant’s averment that the purchase price stipulated in the act from Montet to Aucoin & Sons, the plaintiffs, had not been paid, and if plaintiffs should lose the suit the price would not be paid.
Upon the production of this escrow agreement Young filed an exception of no right or cause of action based on the agreement.
The lower court sustained the exception and dismissed the suit.
This is the judgment before us for review.
Plaintiffs merely produced the agreement; the result of the production is a matter for the merits.
Defendant’s so-called exception of no right or cause of action is not in fact, such, but is rather a supplemental answer, because it brings, into the case as a defense that Montet remains the owner and that plaintiffs are not the owners of the land claimed in their petition and of which defendant is in possession. The exception states that, “the petition taken and considered in connection with the escrow agreement * * * discloses no right or cause of action.”
The escrow agreement does no.t take from the right or cause of action alleged in the petition, but constitutes a fact which is a matter for the merits. It does not question plaintiff’s right to stand in judgment on the question of ownership; it questions, his ownership.
The present situation is like that which existed in McCall v. Irion, 40 La. Ann. 690, 4 So. 859. The following is from the syllabus :
“In a petitory action, exceptions, filed by a defendant, the allegations of which, to be sustained, require the introduction of evidence of title upon which the exceptor must rely to maintain himself in the possession and ownership of the' property, should be referred to the merits.”
In the opinion it is stated that as plaintiff could not introduce evidence in sup*650port of their title, none could be offered by defendant. That an exception of the kind should be referred to and considered with the merits.
In Robbins v. Martin, 43 La. Ann. 488, 9 So. 108, the court said:
“What is termed a plea of no cause of action, ceases to be such, and degenerates into an answer, if it presents an essential averment of fact not stated, or admitted in the petition.”
In Commercial National Bank v. Sanders, 132 La. 174, 61 So. 155, the court said (quotation from the syllabus):
“The exception of no right of action which goes to the merits of the cause, and is not aimed at the right of plaintiff to stand in judgment, should be overruled, and defendant ordered to answer.” Citing authorities.
The case of Peek v. Bemiss, 10 La. Ann. 160, is not applicable to the present situation. That was a petitory action and based on a promise to sell and as to which the case .was tried on the merits and the promise held not sufficient to support the action.
In this case plaintiff is not suing on a promise to sell, but an absolute unqualified title on its face. This escrow agreement is a matter which concerns Montet and. T. Aucoin & Sons personally.
The defendant Young is not biased nor prejudiced, by it in his defense. He can urge any defense against T. Aucoin & Sons that he could urge against Montet. The fact that as between Montet and plaintiff the price was not paid does not concern Young. Civil Code, art. 2456.
In Viguerie v. Hall, 107 La. 767, 31 So. 1019, 1021, the court decided the very question involved in the present case. It was a petitory action in which an exception of no cause of action was urged on a similar ground. The court said:
“Defendants’ first contention is that the action brought by the plaintiff is a petitory action; that such an action can only be brought by one having title to the property he seeks to revendicate; that the instrument upon which the plaintiff declares is not a sale vesting title to the property in the possession of the adjudicatees at a judicial sale,” etc.
The court on page 775 of Viguerie v. Hall, 107 La., 31 So. 1019, 1022, held concerning the defense urged:
“As matters stand, simply on an exception of no cause of action we must assume it to be a legal act. Defendants have as yet shown equities in the premises, and there is nothing to indicate that a single right or defense which they had or have against Mrs. Viguerie could not be as ef; fectually set up against the present plaintiff as against her. Defendants have no legal interest in inquiring into the relations between the plaintiff and his transferor, or the motives or purposes which may have influenced them in passing the act, further than in seeing that she is 'not legally injured thereby. The same defenses which would have been available to defendants as against a demand made by Mrs. Viguerie to annul the judicial sale appear to be open to .them as against the plaintiff. They can ask no more. It is not an unusual occurrence for parties- to place their property and rights in the name and under the' control of others, without any consideration whatever, and without the intention of ownership being actually transferred. Such acts are permissible, and cannot be gainsaid, unless they carry injury to someone. A simulation is not necessarily a fraud. It is only so when injury to third persons is intended.”
The holding in Viguerie v. Hall is cited with approval and followed in Hunter v. Chicago Lumber & Coal Co., 156 La. 19, pages 33 and 34, 100 So. 35.
Smith et al. v. Richland Compress & Warehouse Co., 153 La. 820, 96 So. 668, is another case involving the identical question before the court, except that the suit was for the recovery of damages on ac*651count of the loss of cotton (quotation from syllabus):
“One to whom legal title to cotton damaged by compress company was assigned could sue for the damages, for his own account or for that of the assignors, and it was no concern of the compress company that he had not paid the assignors.
“In action against compress company for damage to cotton, brought by one to whom legal title to the cotton had been assigned, all defenses available against the assignors were open to the defendant.” Citing Rawle, to Use of Russell v. Skipwith, 19 La. 207; Moore & Browder, for Use of Alter v. Bres, 18 La. Ann. 483; Smith v. Atlas Cordage Co., 41 La. Ann. 1, 5 So. 413; Viguerie v. Hall, 107 La. 767, 31 So. 1019; Hanton et al. v. New Orleans & C. R. Light & Power Co., 124 La. 562, 50 So. 544, and other cases.
The cases Leathern & Smith Lumber Co. v. Nalty, 109 La. 325, 33 So. 354, and Ruddock Cypress Co. v. Peyret, 111 La. 1019, 36 So. 105, were also petitory actions in which like defenses were urged in the answers of the defendants, considered on the merits, and the court considered that the matters urged were personal matters of no concern to the defendants.
The escrow agreement will not prevent defendant from urging against plaintiffs any defense available against Montet. The plaintiffs hold under the agreement and title all the rights of Montet in the land and in the suit for the recovery of the same. The plaintiffs are before the court the same as if Montet himself was the plaintiff. See West v. Negrotto, 52 La. Ann. 381, 27 So. 75; Adolph v. Richardson, 52 La. Ann. 1156, 27 So. 665.
The first opinion and decree of this court herein is in my opinion correct; I think it should be reinstated and made final.
I respectfully dissent.