10 La. 19 | La. | 1836
delivered the opinion of the court.
In this case, the plaintiff claims a rescission of a lease, on the ground of non-payment of the rent, on the part of the defendant and lessee.
The defendant resists the action, and justifies his conduct in withholding payment of the rent. He avers that the leased premises border on.the Mississippi river, and that the city council of New-Orleans, during the lease, has passed an ordinance prohibiting the use of the batture in front for cutting up boats and rafts of timber, in that part of the city and its faubourgs in which the leased premises are situated. That he is disturbed in his enjoyment of the whole of the property included in the lease, in consequence of said city ordinance, &c.
The District Court, in rendering its judgment, has very correctly decided that the alleged disturbance, or restriction . * ° of privilege, by the corporation ordinance, in relation to the batture in front of the leased premises, affords no justification for withholding the rent: but it has modified its judgment on equitable grounds, as a proper case for the exercise of equitable powers, and given a delay to the defendant of thirty days, jn which to pay the balance of the rent due, and thereby avoid a total rescission or the lease.
The Code expressly prohibits the courts of this state from exercising such a power under the circumstances of this case, The article 2700 of the Louisiana Code provides, that the
In synallagmatic contracts, the refusal of either party to perform his engagement, entitles the other to his liberation therefrom.
It is, therefore, ordered, adjudged and decreed, that the lease of the premises by the plaintiff to the defendant, be annulled and rescinded; and that the latter pay costs in both courts.
