#### RAMSEY v. LA BAW (LA FRENZ, Intervenor).

Nos. 6809, 6834.

Court of Appeal of Louisiana. Second Circuit.

Feb. 16, 1945.

On Rehearing June 29, 1945.

*686John G. Gibbs, of Natchitoches, for plaintiff-appellant.

J. D. Rusca, of Natchitoches, for inter-venor-appellant.

James A. Horton, of Coushatta, for defendant-appellee.

HARDY, Judge.

Plaintiff brought this suit as holder and owner of a promissory note dated October 11th, 1930, in the sum of $400, due and payable twelve months after date, which note had been acquired by plaintiff through endorsement of the Shreveport Pecan Orchard Co., Inc., the original holder thereof. The petition alleges that the note is identified with an act of sale wherein the Shreveport Pecan Orchard, Inc. sold to J. A. LaBaw, defendant herein, the 40-acre tract of land in Natchitoches Parish. It is further alleged that the act of sale recited a cash payment of One Thousand Dollars, which payment, as a matter of fact, was not made.

The relief sought by plaintiff is the rescission of the sale of the property described on the ground of non-payment of the purchase price, 'and judgment decreeing plaintiff to be the owner of said property free from any liens and encumbrances, or, in the alternative, judgment against the defendant on the note, together with recognition and enforcement of the special mortgage and vendor’s lien recited in the act of sale as security for the payment of the credit portion of the purchase price.

After issue was joined by entry of default, a petition of intervention was filed by John W. LaFrenz, claiming to be a creditor of defendant, and alleging the filing of a separate suit on behalf of the intervenor against the defendant, in the course of which the property in question had been seized under a writ of attachment. Plaintiff excepted to the intervention, but there was no action by the District Court on the exception.

Subsequently, the case came up on confirmation of default, which procedure was objected to by counsel for intervenor, but plaintiff was permitted to proceed with confirmation, subject to the objection.

After hearing there was judgment rejecting the demands of plaintiff, from which judgment plaintiff prosecutes this appeal.

While it is apparent that intervenor was entitled to a determination of his right of intervention on the exception, since there has been no appeal on his part, nor any other action designed to invoke the authority of this Court in aid of its appellate jurisdiction, the instant appeal does not present any issue bearing upon the rights of the intervenor. Accordingly, no question involved in the intervention is now before this Court, nor can the contentions made by the intervenor be considered.

Since defendant in this case was a nonresident, it follows that these proceedings are purely in rem, and there is no right in plaintiff to any character of personal judgment.

v In assigning 'written reasons for judgment, the learned Judge of the District Court relied upon the provision of Article 2045 of the Civil Code, requiring restoration by the creditor of what he has received. The Court stated that plaintiff had failed to tender a return of the sum of One Thousand Dollars, which had been recited as. the cash portion of the consideration, and that, while plaintiff had alleged that no such cash consideration was actually paid, he had failed to prove this fact. Examination determines these statements to be correct, since *687the record is devoid of any evidence of any character of tender, .and there is no showing; of any attempt whatsoever on the part of plaintiff to sustain the allegation of failure of payment of the cash consideration recited in the act of sale.

Article 2045 of the Civil Code, with reference to the resolutory condition, contains the following provision: “It (the dissolving condition) does not suspend the execution of the obligation; it only obliges the creditor to restore what he has received, in case the event provided for in the condition takes place.” (Parenthesis ours.)

It is plain that this provision, applied to the case before us, imposes the obligation upon the plaintiff, who seeks the resolution of the sale, to restore whatever was received. Since the act of sale recites a consideration of Fourteen Hundred Dollars, One Thousand Dollars of which was “cash in hand paid, receipt of which is hereby acknowledged, and the balance in one note of said purchaser”, it is evident that the vendor would be required to tender the repayment of the sum of One Thousand Dollars, which he acknowledged to have received, and the return of the note representing the balance of the purchase price.

It is contended on behalf of plaintiff that he is the assignee of the vendor, that he received nothing from the sale of the property, and, on the contrary, that he paid a consideration for the acquisition of the note involved in this litigation. For this reason, it is argued that the cited provision of the Code is not applicable to this plaintiff.

We find no merit in this contention. The assignee cannot be considered as holding a more favored position than his assignor. The mere change of ownership of the note in question cannot operate as a discharge of the obligation imposed upon one who seeks a certain remedy, of which remedy the obligation is an integral part.

There is no doubt as to the correctness of the judgment of the District Court on this point.

But, it is noted that while the lower Court rejected plaintiff’s demands and dismissed his suit, no reason was assigned for the rejection of the alternative demand for judgment on the note, recognition and enforcement of the vendor’s lien and privilege. However, examination of the record discloses an obvious reason for a rejection of plaintiff’s alternative demand. The promissory note sued on, despite the allegation of plaintiff’s petition to the contrary, is not identified with the act of sale and mortgage, nor was any attempt made upon the occasion of confirmation of default to establish such identification. It necessarily follows that any judgment on the note would have been personal, and, therefore, would not have been within the jurisdiction of the Court under an in rem proceeding against a non-resident.

For the reasons assigned, the judgment appealed from is affirmed at appellant’s cost.

On Rehearing.

TALIAFERRO, Judge.

The facts of this case were fully given in our original opinion. Rehearing was granted on plaintiff’s application, and on his motion the record was ordered returned to the Clerk of Court of Natchitoches Parish to the end that a purported duplicate original of the act of sale from Shreveport Pecan Orchard Company, Incorporated, to Dr. J. A. LaBaw could be incorporated in the record. This has been done and the record, as supplemented, is before us. There is material difference between said instrument and the one recorded, a certified copy of which was in the record originally. The purported duplicate is signed by two attesting witnesses whereas the recorded instrument was signed by only one attesting witness, and therein the purchaser is declared to be a single man, whereas in the recorded act he is declared to be the husband of Leila Robinson.

On March 19, 1945, which was several weeks sxibsequent to rendition of judgment herein by this court, the intervenor, J. W. LaFrenz, applied for and was granted an order of devolutive appeal from the judgment of the lower court which dismissed plaintiff’s suit and demands. This appeal has been perfected and is now before us. Plaintiff has moved us to dismiss the appeal on the following grounds:

1. That no service, substituted or otherwise, of the petition of intervention and order thereon, was served upon Dr. LaBaw.

2. That the issues attempted to be raised by the intervention were not passed upon by the lower court and, consequently, no judgment was signed foreclosing said *688issues. In brief, plaintiff advances the additional point to support the motion to dismiss, that as intervenor prayed only for judgment dismissing plaintiff's suit and judgment accordingly having been rendered, he has not been aggrieved and, consequently, may not appeal therefrom.

The intervention was 'directed against the plaintiff only. The intervenor alleges that he joined the defendant in resisting plaintiff’s demands. Service of intervention on plaintiff only is prayed for, but the record does not disclose that any service was had upon plaintiff. Neither does the record show that issue on the intervention as between plaintiff and intervenor was in any manner joined. On the contrary, the record indicates that such was not done.

Article No. 393 of the Code of Practice provides, inter alia, that: “This petition (of intervention) must be served on the party against whom it is directed, in order that he may answer to the same in the delay given in ordinary suits.”

Issue on the main demand was joined by default. Defendant, being an absentee, was represented by a curator ad hoc who did not answer nor otherwise plead. When plaintiff sought to confirm the default, attorney for intervenor objected to introduction of evidence on the ground that as to the intervention exceptions filed by plaintiff in limine had not been tried nor passed upon by the court. This was true. However, trial was had and evidence was allowed introduced subject to the objection. The judgment appealed from by plaintiff was thereafter rendered. This judgment does not mention the exceptions nor the intervention.

If the intervention had been at issue when trial was had of the main demand, failure of the court to expressly pass upon the issues tendered would be construed as a rejection of the intervenor’s contentions, but as no issue was joined and there were pending exceptions directed against the intervention, the court could not consider the issues raised thereby or thereunder, but intervenor had the right to insist upon trial of the intervention with the main demand.

The intervenor attached the land involved in this suit and thereby acquired, from the date of levy, a privilege thereon. This privilege of course, is primed by the vendor’s lien and mortgage that plaintiff, in alternative demand, seeks to enforce against the land; provided these accessory rights were in force when the suit was filed; otherwise, rights flowing from the attachment have priority.

The intervenor, inter alia, expressly pleaded the prescription of five years as against the $400 note held by plaintiff, which, he alleges, was secured by said vendor’s lien and mortgage. If , the note is barred by the pleaded prescription, automatically the vendor’s lien and mortgage, being accessory obligations, fall; they cease to be of effect as such. Inter-venor has the unquestioned right to plead prescription of the note. Civil Code, Arti-ele No. 3466.

On the face of the record the $400 note prescribed long prior to the filing of the present suit; but courts have not the right to supply a plea of prescription. Civil Code, Article No. 3463. It was the duty of the curator ad hoc appointed to represent the absentee defendant to have made such a plea.

So far as concerns the resolutory action, we have experienced no change in opinion after considering the case on rehearing. The recitals of the act of sale-sought to be resolved control in the absence ’of specific proof that such recitals, as regard the price of sale, are untrue. The fact that the forty-acre tract of land in the opinion of others was not worth $1,400, nor nearly so much, at date of its sale, does not materially affect the situation. The question of value of real estate is a relative one. It, to some extent, depends upon the attitude of buyer and seller; that is, the extent the owner desires to sell and how badly the purchaser wishes to acquire. Their solemn covenants, reduced to writing, should not, without strong proof, be brushed aside.

This case presents unusual facts and procedure. Counsel for plaintiff frankly-admitted in oral argument that the case had largely degenerated into a controversy between opposing counsel. Such a state of affairs, when true, is always regrettable. Courts of justice are instituted among men to adjudicate bona fide disputes between litigants. They deprecate the submission, of cases to them on any other basis.

Inasmuch as the intervenor has not had his day in court, and the alternative demand of the plaintiff was not expressly passed upon by the lower court, we have *689decided to dismiss intervenor’s appeal without prejudice and remand the case for further proceedings, in keeping with the following decree:

The appeal of the intervenor is hereby dismissed without prejudice and, for the reasons assigned, that part of our original judgment affirming the judgment of the lower court, insofar as it rejects the suit to resolve the act of sale in question, is reinstated, and made final. And, it is further ordered and decreed that this case be and it is hereby remanded to the lower court to the end that the alternative demand of the plaintiff may be passed upon, the exceptions to the intervention disposed of, and an adjudication of the issues tendered by the intervention, when and if joinder of issue is had, and for such other action and proceedings in the case as the facts .and circumstances thereof warrant.

Plaintiff is cast for costs of the appeals. Responsibility for other costs will await final judgment herein.