5 Rob. 240 | La. | 1843
On the 1st of September, 1835, the petitioner sold to Mrs. Camp, a tract of land, in the Parish of Poinle Coupee, for a consideration which is expressed in the deed of sale, as follows, to wit:
“ The present sale is made for and in consideration of the sum of three thousand five hundred dollars, payable as follows : five hundred dollars in cash, which the vendor acknowledges to have received to his satisfaction ; five hundred dollars payable in one year from this day ; and the remaining two thousand five hundred dollars, being appropriated to meet the rights of the minor children of the vendor, are to remain on interest, the principal to be payable as the mortgage of the said minors is diminished or released, and the interest to be paid half-yearly in advance, at the rate of six per cent per annum, &c. The property herein above described and sold, remaining specially, and, by privilege, mortgaged and hypothecated, with confession of judgment, to secure the payment of three thousand dollars, as also the interest herein above stipulated to be paid.”
On the 24th of August, 1836, Mrs. Camp sold the property to L. Daigre, who assumed her obligations in relation to the $2500.
On the 31st of May, 1837, Daigre sold the same property to A. Robin, who assumed his vendor’s obligations concerning the sum of $2500, in the following terms : — “ Le sieur Robin devrapayer et pay era comme ilpromet de le faire id, au sieur Mitchell, ou a ses ayant-cause, la somme de deux nville dnq cents piastres en capital et intéréts, ainsi et de la méme maniere que s'y est, engag'ee la dame Henry S. Camp par Pacte du premier Septembreprécité, auquel acte les parties se referent; le dit sieur Robin prenant la reversion de Phypothéque qui assure ce paiement.”
On the 30th of March, 1839, Robin sold to the present defendant, Thomas J. Cooley, who assumed an obligation touching the aforesaid sum of $2500, in the following words r — “ La présente
On the 24th August, 1841, the defendant sold the land to his brother, Ebenezer Cooley, who assumed the like obligations, in relation to the sum of $2500.
James Mitchell, Jr., one of the plaintiff’s four surviving children, having become of age on the 1st of October, 1841, the plaintiff demanded of the defendant the payment of $625, being the portion accruing to the said James Mitchell, Jr., out of the sum aforesaid of $2500 ; and, at the same time, tendered to him a receipt of his said son, under private signature, of the following tenor, to wit:
“ New Orleans, 28ill October, 1841.
“ Received from my father, James Mitchell, six hundred and twenty-five dollars, being for my share, or part, in the estate of my late mother, deceased, and in full of all claims or demands against my said father; and I do hereby release any and every mortgage, right, or privilege, I have on the properly of my.father, authorizing and empowering all and every Recorder or Keeper of Mortgages to release and cancel the same, and especially the mortgage or privilege I have on a property situated in the Parish of Pointe Coupée, sold by my father to Mrs. Amelia Camp, and afterwards purchased by the Honorable Thomas Jefferson Cooley.
“James Mitchell.
“ Ed. Gardere, Witness.’’
On the refusal of the defendant to pay, the present suit was brought to recover the said sum of $625, with interest, at six per cent per annum, from the 1st of September, 1841, together with $75 for the semi-annual interest due at the same date.
The defence set up is : 1st. That the defendant is not personally bound to the petitioner, under the act of sale of Robin to
In the several sales which preceded that of Robin to the defendant, the personal obligation to pay the $2500 to the plaintiff, as original vendor of the property, is expressed in unequivocal terms. These successive sales did not deprive the plaintiff of his right of looking to either of the purchasers, thus personally bound, so long as he had not accepted one of them as his debtor, in lieu of his original vendee. Although the clause in the sale to defendant is not so explicit as in the preceding sales, yet it implies, in our opinion, a personal obligation. It has been contended, that it contains no stipulation, pour autrui, which, when accepted, entitles the obligee to an action against the defendant, but merely constitutes such obligee an adjectus solutionis gratia, as knowna to the Roman law, who has a right to receive the money, but cannot sue for it, as he does not, by such a clause, become a credi-l tor. We cannot acquiesce in this view of the subject. When a person stipulates in a sale, that his vendee shall pay to his vendor a balance of the price yet due, the original vendor, who is thus delegated to receive such amount, may, to be sure, be viewed as being adjectus solutionis gratia. Not being a parly to the contract, he is not bound by the stipulation ; and he may continue to look to his own vendee for payment. On the other hand, the par-lies to the sale may annul and destroy the agreement, but if the person, in whose favor such a stipulation is made, consents to avail himself of it, he thereby makes himself a party to the contract, which cannot afterwards be revoked without his assent,
It is, therefore, ordered, that the judgment of the Commercial Court be avoided and reversed, and that the plaintiff’s petition be dismissed, with costs in both courts.
