177 La. 524

#### ESCAT v. ZANCA et al.

No. 31523.

Supreme Court of Louisiana.

May 1, 1933.

Rehearing Denied May 29, 1933.

Louis R. Hoover and Warren V. Miller, both of New Orleans, for appellant.

Bentley & Dumestre, of New Orleans, for appellees.

OVERTON, Justice.

This suit was brought to rescind an act of sale of real property executed by plaintiff to the defendant Samuel Zanca, and for an accounting of the rents and revenues derived by Zanca from the .property, and should the court find that Zanca was not guilty of fraud in obtaining the act of sale, then to dissolve the sale for failure to pay the purchase price, and also for an accounting of rents and revenues, and should Zanca be unable to return the property, then, in that event, to recover judgment against him for $7,500, with legal interest thereon from September 5, 1930.

The petition alleges that plaintiff entered into an agreement with Andrew Seontrino, on May 7, 1930, to exchange his property, designated as 101 Papworth avenue, Metairie Ridge, valued at $8,900, subject to a homestead mortgage of $1,400, the mortgage to be assumed by Seontrino in the exchange, for the property of Seontrino, located on Tricou and North Robertson streets, in New Orleans, valued at $15,000, subject to a mortgage of $7,500, the mortgage to be assumed by plaintiff in the exchange, the exchange to be exe--cuted on or before forty-five days from the date of the agreement.

It-is also alleged that, on September 1, 1930, the foregoing agreement was modified by another agreement, whereby one, John DiMartino, who was the holder of the $7,500 mortgage note against Scontrino’s property, and Seontrino and plaintiff agreed.that Scon-trino should transfer to DiMartino his property, included in the first agreement, and that DiMartino would lease the Seontrino property, to be transferred to him, to plaintiff, and would grant, in the lease, an option to plaintiff to purchase the leased property on or before September 1, 1933, all rents, when paid, to be credited on the purchase-price.

It is also alleged that, on September 5, 1930, plaintiff received notice that everything was in readiness for the execution of the required papers. On receipt of the notice, the petition shows that plaintiff went to the notary’s office, where he found Seontrino, DiMartino, and several others. An act, it is alleged, to the defendant Zanca, was presented to plaintiff for signature, without the notary’s reading the instrument to plaintiff. Plaintiff signed the act, which purports to be a sale to Zanca, and was informed, it is alleged, that DiMartino would execute the lease and option to plaintiff the next day, which was never done.

The petition shows that, in the sale to Zanca, the recited consideration of $6,000 was not paid, and it also shows that Scon-trino did not transfer his property to DiMar-tino, as agreed by the supplemental contract *699of September 1, 1980, but instead DiMartino seized Seontrino’s property, under bis mortgage, and bad it sold.

Tbe petition also shows that Scontrino knew at tbe date tbe supplemental agreement was signed of bis inability to carry out tbe ágreement, due to tbe existence of other mortgages on tbe property besides tbe one due DiMartino, and hence, it is alleged, that Scon-trino acted fraudulently in signing tbe agreement.

. Tbe (petition also alleges that Scontrino fraudulently conspired with his codefendant and relative, Zanca, to deprive plaintiff of his property without consideration. Tbe petition then alleges that, should there be found to be no fraud in tbe sale to Zanca, then that tbe sale to him should be dissolved, because of tbe nonpayment of tbe purchase price, and that an accounting should be ordered made of tbe revenues of tbe property.

Tbe trial court sustained exceptions of non-joinder and of no right or cause of action, directed by defendants against plaintiff’s petition.

The exception of nonjoinder rests upon tbe ground that plaintiff has not made DiMartino a party to tbe suit. It was unnecesr sary for plaintiff to make him a party. He was not a party to tbe sale, sought to be annulled or dissolved. Tbe judgment, prayed for, cannot affect him, or deprive him of a single right. It is a matter of indifference to DiMartino, so far as his rights are concerned, whether or not tbe sale be annulled or dissolved.

 Tbe exception of no right or cause of action rests on tbe ground that there is no allegation in plaintiff’s petition, showing a putting of defendants in default. So far as relates to tbe demand to annul tbe sale on tbe ground of fraud, tbe fraud alleged makes a putting in default unnecessary. So far as relates to tbe alternative demand that, if no fraud be shown, tbe transfer to Zanca should be dissolved for nonpayment of tbe purchase price, a different question is presented — one in which fraud does not enter. Tbe success of this alternative demand is dependent alone on tbe failure to pay tbe purchase price. Such failure is merely a passive breach of a contract. In such instance, a putting in default is necessary. Civ. Code, arts. 1931 and 1933. To tbe extent only of this alternative demand tbe exception of no right or cause of action properly may be sustained.

For these reasons, tbe judgment, appealed from, is set aside; tbe exception of non-joinder is overruled; tbe exception of no right or cause of action is overruled, save only to tbe extent of said demand, made in tbe alternative, wherein plaintiff asks for tbe dissolution of the sale, because of tbe nonpayment of the purchase price to which extent only the exception is sustained, and plaintiff’s demand, to that extent and no further, is dismissed as of nonsuit. It is further ordered that plaintiff’s demands, except tbe one dismissed, be remanded to be proceeded with consistently with the views, here expressed, defendants to pay tbe costs of this appeal, and the rest of the costs to remain in abeyance until tbe final determination of this ease.