Bullard, J.,
delivered the opinion of the court.
The defendant having procured an order of seizure and sale against a plantation and slaves belonging to the plaintiff, upon which she had a mortgage, and privilege of vendor. The latter made opposition and obtained an injunction to stay proceedings, and prayed for a rescission of the sale of said property on the following grounds:
1. That the plaintiff had failed and neglected to comply with her contract, and to transfer to him the three hundred shares of stock of the Union Bank, which formed the principal motive for him to enter into the contract, and which stock' was secured by mortgage on the said plantation, and a part of the slaves. He avers that he went to the Union Bank for the purpose of receiving such transfer, and to comply on his part with his engagements, but that the vendor failed to appear.
2. That the defendant is proceeding illegally to enforce her order of seizure, by causing the same to be executed by the sheriff of the parish of East Baton Rouge, who is her son and forced heir, and therefore incapacitated to act in the premises.
I. The contract of sale entered into by the parties, after enumerating the land and slaves, which formed the object in part of the contract, proceeds to say: “ Moreover, three shares of the capital stock of the Union Bank of Louisiana now owned by the said vendor, secured by mortgage in favor of said bank on the land and some of the slaves above described, which the vendor obligates herself to transfer to the said vendee. It is agreed that the vendor reserves a certain number of slaves, which were, among others, mort[296]*296gaged to the bank, and the purchaser obligates himself to have the mortgage on the same cancelled and annulled, and further agrees to put himself in the lieu and stead of the vendor, as regards said land, and to execute in favor of the ° bank, a mortgage on a number of slaves equal to those reserved by the vendor. The purchaser assumed to pay to the bank the balance due by the vendor upon her loan, as a stockholder.
The argument in this court has turned principally upon the construction of this part of the contract, upon the obligations of the parties resulting therefrom, and upon the question, whether there has been such a putting in default in relation to the transfer of the bank stock, according to the regulations of the bank, as to entitle the purchaser to the remedy he seeks. On the part of the plaintiff in injunction, it is argued, that even admitting the act of sale is sufficient evidence of a sale of the stock as between the parties, yet as relates to the bank itself and to third persons, a formal transfer on the books of the institution was promised and is required. That until such transfer shall be executed there is no delivery of the stock, and that the purchaser has a right to withhold the price until the vendor has complied with her part of the contract. On the other side it is contended, that the first step to be taken in order to carry out the intentions of the parties, was to be taken by the purchaser; that until he offered other-slaves to be mortgaged to the bank, in order to release those which were reserved by the vendors, it was impossible for her, according to the regulations and by-laws of the bank, to make a transfer on its books, and that she could not be considered as legally in default, until such slaves had been substituted, to the satisfaction of the board of directors ; that she had an interest in having such substitution made, because her slaves were still liable to be sold for a debt no longer hers, but which the appellant had engaged to pay to the bank.
It appears to us that, according to the contract between the parties, the bank stock formed a part of the object of the sale, and that the vendor could not afterwards be regarded as a stockholder as between her and the vendee that if she had [297]*297afterwards derived any advantage from the stock, she would have been accountable to him, and that the profits on the stock from the date of their contract belonged to him, saving the rights of third persons. Nothing remained to be done to render the contract binding on the whole world, but a formal transfer on the books of the bank, according to its by-laws. But the by-laws forbid such a transfer until the new mortgage shall have been accepted or found sufficient. If this were a direct action against Madame Duplantier for damages for the non-performance of her promise to transfer the stock, it appears to us clear that such action could not be maintained, without proof of at least a readiness on the part of the purchaser, and an offer to perform what by the contract he was first bound to do, or at least to do simultaneously. She would not be permitted to make a transfer and to substitute another person in her place, until the bank should be satisfied with the new security, and until the vendee had first satisfied the board of directors, he would have no right to complain of a non-compliance, on the part of the appellee, with her part of the contract. If in such direct action the appellant could not recover damages without proof of putting in default, it is not easy to perceive how he can be permitted, by way of exception, to obtain either a rescission of the contractor to withhold the price, not of the bank stock alone, but 'of the lands and slaves. No time was fixed within which these mutual stipulations were to be performed. Either party might therefore claim an immediate performajnce, but only upon the terms and in the manner pointed out by law for the enforcer J t ment of similar reciprocal engagements. Louisiana Code, 1907; 6 Toullier, No. 609.
Where the purchaser of a plantation and slaves, under mortgage for bank stock, stipulates that the seller may reserve certain slaves and he will put in others, and assumes her obligations to the bank, he cannot claim a rescission of the sale on an exception to her right to proceed against the plantation and slaves for the price, or damages in a direct action, on the ground that she (the seller) has not transferred the bank stock; until he puts her in default by showing a readiness and 'offer, on his part, to perform what by the contract he was first bound to do, or at least simultaneously.
. When no time is fixed by aeon-tract, within tolltipuLtZ's be„¡^. party may claim performance,acteTm^lmUn the mode pointed out by law for enforcing simiengagements.0*1
II. The second ground of opposition relates to the competency of the sheriff, who is the son of the defendant in injunction, and appellee. The Code of Practice makes it the duty of the coroner to act whenever the sheriff is interested in a cause. Article 772. We must take with great . . . allowance all authorities from the common law, on this subject, for two reasons : First, that the sheriff in England is believed to possess, in some cases, a judicial discretion ; and, [298]*298secondly, because his competency to act in particular cases not (jepen(] wholly on his pecuniary interest. He is incompetent when, standing in certain relations towards the parties, on the ground of a supposed bias and partiality. The code, on the contrary, does not declare that officer incompetent on any other ground than interest in the cause, anc[ we cannot suppose the legislature meant any other than . . rr ° J a pecuniary interest. When persons standing in similar relations towards each other are declared incompetent to testify f°r or against each other, their incompetency is not supposed to depend on interest alone.
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Bullard, J.,
delivered the opinion of the court.
The defendant having procured an order of seizure and sale against a plantation and slaves belonging to the plaintiff, upon which she had a mortgage, and privilege of vendor. The latter made opposition and obtained an injunction to stay proceedings, and prayed for a rescission of the sale of said property on the following grounds:
1. That the plaintiff had failed and neglected to comply with her contract, and to transfer to him the three hundred shares of stock of the Union Bank, which formed the principal motive for him to enter into the contract, and which stock' was secured by mortgage on the said plantation, and a part of the slaves. He avers that he went to the Union Bank for the purpose of receiving such transfer, and to comply on his part with his engagements, but that the vendor failed to appear.
2. That the defendant is proceeding illegally to enforce her order of seizure, by causing the same to be executed by the sheriff of the parish of East Baton Rouge, who is her son and forced heir, and therefore incapacitated to act in the premises.
I. The contract of sale entered into by the parties, after enumerating the land and slaves, which formed the object in part of the contract, proceeds to say: “ Moreover, three shares of the capital stock of the Union Bank of Louisiana now owned by the said vendor, secured by mortgage in favor of said bank on the land and some of the slaves above described, which the vendor obligates herself to transfer to the said vendee. It is agreed that the vendor reserves a certain number of slaves, which were, among others, mort[296]*296gaged to the bank, and the purchaser obligates himself to have the mortgage on the same cancelled and annulled, and further agrees to put himself in the lieu and stead of the vendor, as regards said land, and to execute in favor of the ° bank, a mortgage on a number of slaves equal to those reserved by the vendor. The purchaser assumed to pay to the bank the balance due by the vendor upon her loan, as a stockholder.
The argument in this court has turned principally upon the construction of this part of the contract, upon the obligations of the parties resulting therefrom, and upon the question, whether there has been such a putting in default in relation to the transfer of the bank stock, according to the regulations of the bank, as to entitle the purchaser to the remedy he seeks. On the part of the plaintiff in injunction, it is argued, that even admitting the act of sale is sufficient evidence of a sale of the stock as between the parties, yet as relates to the bank itself and to third persons, a formal transfer on the books of the institution was promised and is required. That until such transfer shall be executed there is no delivery of the stock, and that the purchaser has a right to withhold the price until the vendor has complied with her part of the contract. On the other side it is contended, that the first step to be taken in order to carry out the intentions of the parties, was to be taken by the purchaser; that until he offered other-slaves to be mortgaged to the bank, in order to release those which were reserved by the vendors, it was impossible for her, according to the regulations and by-laws of the bank, to make a transfer on its books, and that she could not be considered as legally in default, until such slaves had been substituted, to the satisfaction of the board of directors ; that she had an interest in having such substitution made, because her slaves were still liable to be sold for a debt no longer hers, but which the appellant had engaged to pay to the bank.
It appears to us that, according to the contract between the parties, the bank stock formed a part of the object of the sale, and that the vendor could not afterwards be regarded as a stockholder as between her and the vendee that if she had [297]*297afterwards derived any advantage from the stock, she would have been accountable to him, and that the profits on the stock from the date of their contract belonged to him, saving the rights of third persons. Nothing remained to be done to render the contract binding on the whole world, but a formal transfer on the books of the bank, according to its by-laws. But the by-laws forbid such a transfer until the new mortgage shall have been accepted or found sufficient. If this were a direct action against Madame Duplantier for damages for the non-performance of her promise to transfer the stock, it appears to us clear that such action could not be maintained, without proof of at least a readiness on the part of the purchaser, and an offer to perform what by the contract he was first bound to do, or at least to do simultaneously. She would not be permitted to make a transfer and to substitute another person in her place, until the bank should be satisfied with the new security, and until the vendee had first satisfied the board of directors, he would have no right to complain of a non-compliance, on the part of the appellee, with her part of the contract. If in such direct action the appellant could not recover damages without proof of putting in default, it is not easy to perceive how he can be permitted, by way of exception, to obtain either a rescission of the contractor to withhold the price, not of the bank stock alone, but 'of the lands and slaves. No time was fixed within which these mutual stipulations were to be performed. Either party might therefore claim an immediate performajnce, but only upon the terms and in the manner pointed out by law for the enforcer J t ment of similar reciprocal engagements. Louisiana Code, 1907; 6 Toullier, No. 609.
Where the purchaser of a plantation and slaves, under mortgage for bank stock, stipulates that the seller may reserve certain slaves and he will put in others, and assumes her obligations to the bank, he cannot claim a rescission of the sale on an exception to her right to proceed against the plantation and slaves for the price, or damages in a direct action, on the ground that she (the seller) has not transferred the bank stock; until he puts her in default by showing a readiness and 'offer, on his part, to perform what by the contract he was first bound to do, or at least simultaneously.
. When no time is fixed by aeon-tract, within tolltipuLtZ's be„¡^. party may claim performance,acteTm^lmUn the mode pointed out by law for enforcing simiengagements.0*1
II. The second ground of opposition relates to the competency of the sheriff, who is the son of the defendant in injunction, and appellee. The Code of Practice makes it the duty of the coroner to act whenever the sheriff is interested in a cause. Article 772. We must take with great . . . allowance all authorities from the common law, on this subject, for two reasons : First, that the sheriff in England is believed to possess, in some cases, a judicial discretion ; and, [298]*298secondly, because his competency to act in particular cases not (jepen(] wholly on his pecuniary interest. He is incompetent when, standing in certain relations towards the parties, on the ground of a supposed bias and partiality. The code, on the contrary, does not declare that officer incompetent on any other ground than interest in the cause, anc[ we cannot suppose the legislature meant any other than . . rr ° J a pecuniary interest. When persons standing in similar relations towards each other are declared incompetent to testify f°r or against each other, their incompetency is not supposed to depend on interest alone. This court has ruled, . 'it, , ... on the contrary, that the descendant cannot testify in a cause *n wh*°h h's ascendant is a party, even when called to testify against his own interest. Whether similar notions of public ,. . . . . .1 . policy ought not to incapacitate sheriffs or other ministerial °ffcel's> when called upon to act in cases in which their parents or their descendants are interested, is a question for ‘ . . . . 1 the legislative authority, which alone is competent to remove such an anomaly.
A sheriff, who is the nearest relation and son of one of the parties, is not incompetent to act and execute process in the case. It is a pecuniary interest alone, that renders him incompetent.
A judgment by default cannot be taken by the plaintiff in an opposition and injunction to an order of seizure and sale. No answer is required; a rule taken by the adverse party to dissolve the injunction is equivalent to an answer; and such opposition and injunction are to be tried summarily.
Our attention has been drawn to a bill of exceptions taken to the opinion of the court overruling a motion of the plaintiff and appellant, for a judgment by default, upon showing that the petition for injunction had been duly served, and no answer filed. The court, in our opinion, did not err. The petition for an injunction in this case was in the form of an opposition to an executory proceeding, and no answer is required by the code. A rule had previously been taken by the opposite party to show cause why the injunction should not be dissolved, on the ground that it had been wrongfully obtained. Such rule may be considered as equivalent to an answer. The refusal to allow judgment by default to be entered did not operate any injustice, inasmuch as a trial appears to have taken place, and no evidence offered by either party was rejected. Such oppositions and injunctions are to be tried summarily. Code of Practice, 741.
The counsel for the appellant contends that no trial has been had upon the merits. To this it may be answered, that, on the trial of the various rales and counter-rules, with [299]*299which the recorcLis incumbered, it does not appear that the court refused to admit any evidence offered by either party. Nor did the court err, in our opinion, in deciding that the rule taken to show cause why the injunction should not be dissolved, was to be considered as an assignment of the cause for trial on a particular day ; and that the petition for an injunction was to be regarded as an answer in opposition ; and that the plaintiff in opposition was called on by the rule to support the grounds of his opposition by. evidence. Many of the questions of practice raised in this case have been substantially decided in the case of Williams vs.'Duer, at the present term.
The trial of a rule taken to set aside, and dissolve an opposition and injunction staying executory proceedings, is a trial on the merits, in which the plaintiff therein is called on to support the grounds of his opposition by evidence.
The judgment of the District Court is, therefore, affirmed, with costs.