| La. | Sep 15, 1840
delivered the opinion of the court.
This is an hypothecary action against property in the hands of the defendant, as a third possessor, and was brought to satisfy a judgment, obtained by the plaintiff, against Balthazar Delahoussaye, who was his curator, and to whom the land formerly belonged. The defence set up, is that, in a notarial act in which the plaintiff was assisted by his curator, he renounced his tacit mortgage on the premises ; that although he was then a minor, he cannot now ask for the nullity or rescission of his renunciation, because he is barred by prescription; more than Jive years having elapsed between his coming,of age and the institution of this suit.
It appears to us that ihe decision to be made, on the plea set up by the defendant, depends on a correct application of the rule qua temporalice sunt ad agendum; sunt perpetua ad excipiendum, which is invoked by the plaintiff. If he is not entitled to its protection, his renunciation has become binding on him, as much so, as if he had ratified it after becoming of full age. This rule, which is derived from the Roman jurisprudence, has often been improperly applied, and made to cover direct demands under the name and form of exceptions, It is now, however, well understood to exist only in favor of a defendant in the possession or exercise of the property, right or position attempted to be taken from him. If for instance, a vendor is left in possession of property after a sale of it which might have been annulled on the score of lesion, he may remain silent as to this defect in the contract, and reserve to himself the right of pleading the nullity of the sale, by way of exception, whenever he shall be sued by the purchaser for the delivery of the property ; until then he has no interest to bring a suit; he might consider the contract as a nullity, and believe that the purchaser will never call for its execution ; hence the maxim, posidenti non competit actio sed exceptio. If on the contrary, such a vendor had delivered the property, and suffered the purchaser to remain in possession a length of time sufficient for the prescription of the action of rescission, he could not afterwards, by bringing a petitory action, thus compel the purchaser to produce his title, and then by way of exception, ask for its nullity or rescission,
Such an extraordinary course, would evidently cover an attempt to evade the law, debarring him from the right of bringing a direct action of rescission. 7 Toullier, No. 602. So, in the present case, the exception invoked by the plaintiff in a suit brought by himself, would, if sustained, give him all the advantages he could derive from a direct action of nullity against his renunciation, had he brought it in due time. This cannot be. An exception has for its object to maintain the defendant in the situation he stands in, while an action aims
It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.