¶1delivered the opinion of the court.
¶2The plaintiff in this case, demanded from his insolvent debtor, and the syndic appointed by the creditors, the rescission of a sale and the return of certain slaves, which were surrendered by the insolvent, and upon which a special mortgage had been retained for the price. He claimed the rescission on the ground that the price remained unpaid, and that in virtue of his mortgage, he had a right to take back the property sold. Judgment was rendered, denying him this privilege, and he appealed.
¶3The plaintiff’s demand was resisted by the syndic of the insolvent, on the ground that the action could not be main*83lained, because the slaves in question were part of the property surrendered ; and further, that all proceedings against the pbrson and property,of the debtor were stayed. Finally, because the slaves were liable, with the other . . . ., , , . , property surrendered, for the costs and charges of the proceedings in the concurso of creditors.
¶4The iudgment of the Parish Court is erroneous. A sale . „■ . 1 • 1 • I 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 mEly demand the rescission of the contract from the defaulting parl.y* *
¶5The 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. ‘
¶6The cession or surrender of the insolvent debtor’s rights, for the benefit of his creditors, could not, and did not, change the character and nature of those rights. They remained 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 contravene the order staying all proceedings against the person and property of the insolvent, by exercising his right against the syndic,
¶7The slaves in controversy, not being the absolute property of the ceding'debtor, and bis defeasible right to them being , , . . . . , . . „ . , annihilated by the rescission of the sale, it follows they make no part of the property surrendered ; and their price cannot be diminished, or they in any manner held liable by the .j - t i syndic of the insolvent’s estate, for the-costs ana charges ,, the concurso. t
¶8The sale having been proved, and the obligation resulting therefrom shown to be reciprocal, and the price not pretended to have been paid, or any part of it; it *84the plaintiff is entitled to have the contract or sale rescinded.
¶9It is, therefore, ordered, adjudged and decreed, that the judgment of the Parish Court be annulled, avoided and reversed; and it is further ordered, adjudged and decreed, that the sale of the slaves in question be rescinded; and that the plaintiff recover the possession of them from the syndic ; the latter paying costs in both courts.