Spoffoed, J.
It is agreed that the main question to he here solved is this: When the vendee of a slave, holding by private act unrecorded, has mortgaged the slave to a third person by public act duly registered, can the unpaid vendor enforce the implied dissolving condition against his vendee, to the prejudice of the mortgage creditor of the latter ?
The principles which, in our opinion, must control the decision of this question are embodied in a few articles of the Civil Code.
[700]*700“ The dissolving condition is that which, when accomplished, operates the revocation of the obligation, placing matters in the same state as though the obligation had not existed. It 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.” C. C. 2040.
“A resolutory condition is implied in all commutative contracts to take effect in case either of the parties do not comply with his engagements ; in this case the contract is not dissolved of right; the party complaining of the breach of the contract may either sue for its dissolution with damages, or, if the circumstances of the case permit, demand a specific performance.” O. O. 2041.
“ If the buyer does not pay the price, the seller may sue for the dissolution of the sale.” O. O. 2539.
“ Obligations are extinguished * * * * by the effect of the dissolving condition which has been explained in the preceding chapter.” O. O. 2126.
“ Such as only have a right that is suspended by a condition, and may be extinguished in certain cases (in the Frinch text,¿ni résoluble dans certains cas, ou sujet d rescisión) can only agree to a mortgage subject to the same conditions, and (ou) liable to the same extinction.” O. O. 3268.
Our jurisprudence upon the topic of the resolutory condition in commutative contracts, so for as it has gone, is believed to be lucid and consistent.— Little remains to be said upon that branch of the subject which has been fathomed and expounded, in a few terse paragraphs, by the clear intellect of the late Judge Martin. In Mortee v. Roach's Syndic, 8 L. R. 83; this learned Judge, as the organ of the court, remarked : “ A sale is a synallagmatic contract which imposes on the vendor the obligation of delivering the thing sold and requires of the vendee the payment of the price. In the case of reciprocal obligations, the party who does not perform his part of the engagement, cannot avail himself of any rights resulting to him from the contract; consequently, the other party may demand the rescission of the contract from the defaulting- party.
“•The insolvent debtor not having paid the price was not the absolute owner of the slaves; and his right to the property was therefore not indefeasible.
“ The cession or surrender of the insolvent debtor’s rights could not, and did not, change the character and nature of those rights. They remained the the same; for the debtor could only cede the rights he had, and in the condition they were at the time. What was conditional and defeasible in his hands, did not become absolute and indefeasible in the hands of his creditors. The plaintiff did not not contravene the order staying all proceedings against the person and property of the insolvent, by exercising his right (to sue for the dissolution) against the syndic.
“ The slaves in controversy, not being the absolute property of the ceding debtor, and his defeasible right to them being annihilated by the rescission of the sale, it follows that they make no part of the property surrendered; and their price cannot be diminished, or they in any manner held liable by the syndic of the insolvent’s estate, for the costs and charges of the concurso." See also, upon the general subject Canal Bank v. Copelond, 15 L. R. 76; Power v. Ocean Insurance Company, 19 L. R. 28; Fulton v. Her Husband, 7 Rob. 73; Chretien v. Richardson, 6 Ann. 2; Shields v. Lafon, 7 Ann. 1351.
[701]*701But it is contended in the present case that the resolutory condition, to be ■operative against a mortgagee of the vendee, is required to be notified to the public by a registry of the act of sale, before the mortgage by the vendee is registered. No judicial authority is quoted for such an opinion. No law is cited which, in our judgment, refers in terms or by clear implication to such a necessity.
Registry laws are artificial rules, the creatures only of positive legislation. As they tend to multiply forms in the transmission of property, and to restrict the natural right of man to do what he will with his own, they have seldom, if ever, been extended by judicial construction to cases not within their plain ■and obvious intendment.
It is true the vendor of an immovable or slave only preserves his privilege as against third persons by recording the act of sale. O. O. 3238. But it is impossible to confound the resolutory action with the vendor’s privilege. The former is not a mere appendage of the latter. It is a distinct substantive, and independent right or remedy. “ Le vendeur en effet, ayanticideux droits distinctsj ■celui d’agir pour son payement, en créancier privilegié et non en créancier ordinaire, puis celui de reprondre la chose si on ne le paye pas, la perte du premier le réduit sans doute á n’avoir plus que le second, mais il a toujours ce ■second: il n’est plus que créancier ordinaire, aulieu d’etre créancierprivilégié ; mais il est toujours créancier, il est toujours vendeur non payé, et il peut des lors faire résoudre la vente.” 6 Marcardé, p. 289, O. N. 1056.
The fact that the lawgiver has said that registry shall bo essential to the preservation of the vendor’s privilege upon immovables and slaves, and has not said that the same formality shall be necessary to preserve the right of demanding a dissolution of the sale for non-payment of the price, implies that registry is immaterial to the existence of the latter right. Qui elicit de uno negat de altero.
The argument is substantially the same under our Code as under the Napoleon Code, for the articles relative to both remedies and to the necessity of inscription to preserve the vondor’s privilege, are borrowed from the latter Code. So clear was it under the Erench Code, that the loss of the vendor’s privilege, for want of registry or other cause, did not involve a forfeiture of the vendor’s right to resort to the dissolving condition, that there seems to have been no dissent upon this point for more than forty years among the Erench tribunals and commentators. See Persil (Art. 2103) Duvergier (vente I. 551,) Duranton, (XVI. 362,) Troplong (Hyp. I. 222,) Toullicr (VI. 577,) and the numerous m'réts of various tribunals cited by Marcadé, (loe. ait.) When jurists of a race so much addicted to theoretical speculation, and so little addicted to reverence for each other’s opinions, draw a conclusion from the Code in which they unanimously concur, we may, perhaps, set it down for an obvious truth.
The policy of the law has long been a matter of discussion in France. But it was never supposed there that it was competent for the tribunals of justice to supply what was thought by many to be a defect in the law, giving rise to occasional hardships. The legislative branch of the French government was often appealed to for a reform in this particular, but, for a long time without success.
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Spoffoed, J.
It is agreed that the main question to he here solved is this: When the vendee of a slave, holding by private act unrecorded, has mortgaged the slave to a third person by public act duly registered, can the unpaid vendor enforce the implied dissolving condition against his vendee, to the prejudice of the mortgage creditor of the latter ?
The principles which, in our opinion, must control the decision of this question are embodied in a few articles of the Civil Code.
[700]*700“ The dissolving condition is that which, when accomplished, operates the revocation of the obligation, placing matters in the same state as though the obligation had not existed. It 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.” C. C. 2040.
“A resolutory condition is implied in all commutative contracts to take effect in case either of the parties do not comply with his engagements ; in this case the contract is not dissolved of right; the party complaining of the breach of the contract may either sue for its dissolution with damages, or, if the circumstances of the case permit, demand a specific performance.” O. O. 2041.
“ If the buyer does not pay the price, the seller may sue for the dissolution of the sale.” O. O. 2539.
“ Obligations are extinguished * * * * by the effect of the dissolving condition which has been explained in the preceding chapter.” O. O. 2126.
“ Such as only have a right that is suspended by a condition, and may be extinguished in certain cases (in the Frinch text,¿ni résoluble dans certains cas, ou sujet d rescisión) can only agree to a mortgage subject to the same conditions, and (ou) liable to the same extinction.” O. O. 3268.
Our jurisprudence upon the topic of the resolutory condition in commutative contracts, so for as it has gone, is believed to be lucid and consistent.— Little remains to be said upon that branch of the subject which has been fathomed and expounded, in a few terse paragraphs, by the clear intellect of the late Judge Martin. In Mortee v. Roach's Syndic, 8 L. R. 83; this learned Judge, as the organ of the court, remarked : “ A sale is a synallagmatic contract which imposes on the vendor the obligation of delivering the thing sold and requires of the vendee the payment of the price. In the case of reciprocal obligations, the party who does not perform his part of the engagement, cannot avail himself of any rights resulting to him from the contract; consequently, the other party may demand the rescission of the contract from the defaulting- party.
“•The insolvent debtor not having paid the price was not the absolute owner of the slaves; and his right to the property was therefore not indefeasible.
“ The cession or surrender of the insolvent debtor’s rights could not, and did not, change the character and nature of those rights. They remained the the same; for the debtor could only cede the rights he had, and in the condition they were at the time. What was conditional and defeasible in his hands, did not become absolute and indefeasible in the hands of his creditors. The plaintiff did not not contravene the order staying all proceedings against the person and property of the insolvent, by exercising his right (to sue for the dissolution) against the syndic.
“ The slaves in controversy, not being the absolute property of the ceding debtor, and his defeasible right to them being annihilated by the rescission of the sale, it follows that they make no part of the property surrendered; and their price cannot be diminished, or they in any manner held liable by the syndic of the insolvent’s estate, for the costs and charges of the concurso." See also, upon the general subject Canal Bank v. Copelond, 15 L. R. 76; Power v. Ocean Insurance Company, 19 L. R. 28; Fulton v. Her Husband, 7 Rob. 73; Chretien v. Richardson, 6 Ann. 2; Shields v. Lafon, 7 Ann. 1351.
[701]*701But it is contended in the present case that the resolutory condition, to be ■operative against a mortgagee of the vendee, is required to be notified to the public by a registry of the act of sale, before the mortgage by the vendee is registered. No judicial authority is quoted for such an opinion. No law is cited which, in our judgment, refers in terms or by clear implication to such a necessity.
Registry laws are artificial rules, the creatures only of positive legislation. As they tend to multiply forms in the transmission of property, and to restrict the natural right of man to do what he will with his own, they have seldom, if ever, been extended by judicial construction to cases not within their plain ■and obvious intendment.
It is true the vendor of an immovable or slave only preserves his privilege as against third persons by recording the act of sale. O. O. 3238. But it is impossible to confound the resolutory action with the vendor’s privilege. The former is not a mere appendage of the latter. It is a distinct substantive, and independent right or remedy. “ Le vendeur en effet, ayanticideux droits distinctsj ■celui d’agir pour son payement, en créancier privilegié et non en créancier ordinaire, puis celui de reprondre la chose si on ne le paye pas, la perte du premier le réduit sans doute á n’avoir plus que le second, mais il a toujours ce ■second: il n’est plus que créancier ordinaire, aulieu d’etre créancierprivilégié ; mais il est toujours créancier, il est toujours vendeur non payé, et il peut des lors faire résoudre la vente.” 6 Marcardé, p. 289, O. N. 1056.
The fact that the lawgiver has said that registry shall bo essential to the preservation of the vendor’s privilege upon immovables and slaves, and has not said that the same formality shall be necessary to preserve the right of demanding a dissolution of the sale for non-payment of the price, implies that registry is immaterial to the existence of the latter right. Qui elicit de uno negat de altero.
The argument is substantially the same under our Code as under the Napoleon Code, for the articles relative to both remedies and to the necessity of inscription to preserve the vondor’s privilege, are borrowed from the latter Code. So clear was it under the Erench Code, that the loss of the vendor’s privilege, for want of registry or other cause, did not involve a forfeiture of the vendor’s right to resort to the dissolving condition, that there seems to have been no dissent upon this point for more than forty years among the Erench tribunals and commentators. See Persil (Art. 2103) Duvergier (vente I. 551,) Duranton, (XVI. 362,) Troplong (Hyp. I. 222,) Toullicr (VI. 577,) and the numerous m'réts of various tribunals cited by Marcadé, (loe. ait.) When jurists of a race so much addicted to theoretical speculation, and so little addicted to reverence for each other’s opinions, draw a conclusion from the Code in which they unanimously concur, we may, perhaps, set it down for an obvious truth.
The policy of the law has long been a matter of discussion in France. But it was never supposed there that it was competent for the tribunals of justice to supply what was thought by many to be a defect in the law, giving rise to occasional hardships. The legislative branch of the French government was often appealed to for a reform in this particular, but, for a long time without success. Recently the experiment has been tried, and by Art. 7 of the Transcription law of the 23d March, 1855, it was declared that the resolutory action established by Art. 1654 of the Napoleon Code cannot be brought, after the vendor's privilege is extinguished, to the prejudice of third persons who have [702]*702acquired rights upon the immovable under the vendee, and have complied with the laws prescribed for the preservation of such rights.
The Legislature of Louisiana has not yet seen fit to impose such a limitation upon the exercise of the resolutory action with regard to immovables and slaves. The dissolving condition for non-payment of the price stands with us, as it stood in France before the law of the 23d March, 1855, a condition wholly independent of the vendor’s privilege, coeval with and parcel of the contract of sale itself. The vendee takes the property subject to the condition in favor of his unpaid vendor; as there is no law requiring a registry to preserve this condition, it follows, according to Art. 3268 of the Louisiana Code, that the vendee can only mortgage the property, subject to the same condition; the general rule of logic and justice, nemo plus juris in alium tramsferre potest quam ipse habit being unqualified in this respect, by any arbitrary rule imposed by the Legislature, the third person who accepts a mortgage from the naked possessor without a recorded title, and afterwards finds it ousted by the effect of the condition on which alone his mortgage had been enabled to acquire possession, has only himself to blame for not having required an exhibition of his mortgagor’s title and receipts for the price. If he suffers, he pays the penalty of his own heedlessness in taking a mortgage upon an immovable or slave from one who displayed no other proof of unconditional ownership than possession merely.
We do not perceive that our laws with regard to the registry of sales affect the present question, Those laws were designed to protect creditors of and purchasers from vendors against the unrecorded claims of sous-seing privé vendees and those claiming under such vendees. If the sale of the slaves in question from the present plaintiff to Portevint Bloodworth is to bo considered null and void, for want of registry, as to persons claiming under Bloodworth who are certaily third persons, then his mortgagees, the opponents B. Toledano & Taylor, have accepted a mortgage a non domino, and are in a worse plight than we take them to be with a mortgage from one who was the owner subject to the dissolving condition.
The laws relative to the registry of mortgages are also, in our view, foreign to the subject before us.
Something has been said about the danger of leaving this tacit right unrestricted by a registry law. Upon this point it is possible that opinions may differ. It suffices for us to say that, when statutes are free from ambiguity and absurdity, we are not called upon to investigate their expediency. Under a gov-government of written laws, the judiciary is but the interpreter of the legislative will. The reform ofthe law, the redress of public grievances flowing logically from existing statutes, are high prerogatives which belong to the Legislative domain.
We deem it proper, however, to observe that we do not think such injurious consequences as some of those which have been surmised can result from the law as it now stands.
The prescription of five years under Art. 3444 of the Civil Code will protect the third possessor of a slave against an action of this character; slaves bought in other States of the Union are not bought subject to the dissolving condition which is peculiar to the civil law; and movables are unaffected by the doctrine of this case. Such property being governed by distinct regulations which preclude it from being followed into third hands by the dissolving condition.
Upon the other points raised by B. Toledano & Taylor, the appellants in [703]*703this case, we also concur in the opinion of the District Judge. The intervehoys contended that the vendee P. Bloodioorth assigned to his vendor, the plaintiff, his share of James BloodwortKs succession in payment of the slaves, and that her neglect to notify the administrator of that succession of the transfer, was the cause of her having lost the price.
The evidence shows that this was only a mode of payment left to the option of the vendee, rwho bound himself to pay in cash if the amount was not realized to the plaintiff from the source indicated; but that, before entering into the act of the purchase, the vendee,- had put it out of his power to pay the plaintiff in that mode, by assigning all his interest in the succession of James Bloodworth to Moses Greenwood & Go., who have been made parties to this suit and claim the benefit of the assignment, and that no diligence by the plaintiff could have enabled her to get the priority of Moses Greenwood & Go., because they notified the administrator of the assignment to them before P. Bloodworth bought the slaves in question.
It is, therefore, ordered and decreed, that the judgment of the District Court be affirmed with costs.
It is, further ordered and decreed, that this opinion and decree be forwarded to the clerk of the Supreme Court at Alexandria, in order that the same may be there filed, and notice thereof given in conformity with the agreement of the parties on file.