The defendant, who is an auctioneer, adjudicated to the plaintiff at public auction a certain piece of real property in the City of New Orleans for the price and sum of $4420.00; plain-paying to the defendant 10 per cent, thereof, or say $442.00, to bind the sale.

Subsequently the plaintiff brought her suit to recover of the auctioneer this deposit, on the ground that as “there is a mortgage against said property, which operates as a cloud upon it and makes it impossible or unsafe for petitioner to accept title,” she is therefore not obligated to take it and is entitled to a return of the amount paid to bind the sale.

The answer admits ■ the contract of sale, but denies the existence of any cause for the rescission thereof.

There was judgment for the plaintiff as prayed for, and defendant appealed.

It' is contended by the defendant that the plaintiff has failed to *216allege and to prove that he, (defendant) had been put in default; and that such proceeding is indispensable to the right to rescind or dissolve the contract declared on, when its alleged breach is passive and not active.

The petition does not allege any putting in mora, nor is there any evidence whatsoever that the defendant was put in default pursuant to the provisions of the Code; and it is apparent that the alleged violation of the contract is passive. This putting in default is, under our law, an indispensable prerequisite to sustain an action of this kind. C. C. 1911, 1912, 1913; 6 N. S. 121; 8 R. 161; 1 La. 98; 7, La. 188; 13 La. 229; 9 R. 495; 19A, 130; 20 A. 291; 37 A. 491, 661; 38 A. 781; 42 A. 492.

“The object of the putting in default,” said the Supreme Court, in Moreau vs. Chawin, 8 R. 161, “is to secure the creditor his right to demand damages, or a dissolution of the contract, so that the debtor can no longer defeat this right, by executing or offering to' execute the agreement.”

By the failure Of the plaintiff to put the defendant in default in one of the three modes provided by Art. 1911 C. C., the latter’s right to “execute or to offer to execute the agreement” is not defeated, and until that right is defeated, the plaintiff can have no action for the rescission 'of the contract.

It is objected, however, that this defense cannot be urged, for-asmuch as it was not specially pleaded, but was suggested merely in argument.

The putting in default, under the textual provision of the Code, (Art. 1912j, “is a prerequisite to the recovery of damages and of profits and fruits, or to the rescission of the contract/’ It must precede the recovery of the recissioü, and in its absence a cause of action is not shown. The want of it need not be pleaded at all, it is not waived by an answer setting up other matters and can •be taken advantage of at any time. Erwin vs. Fenwick, 6 N. S. 235; Hodge vs. Moore, 3 R. 400; Hepp vs. Commangere, 10 R. *217524; Beck vs. Fleitas, 37 A. 494; Livingston vs. Scully, 38 A. 786.

The plaintiff, 'having failed to allege and prove this putting in default, he cannot recover; hence the judgment appealed from is ■error and must be reversed and plaintiff's suit dismissed as in case of non-suit.

It is therefore ordered, adjudged and decreed that the judgment appealed from be and the same is hereby avoided, reversed and set aside, and that plaintiff’s suit be dismissed as in case of non suit. The costs of both courts to be taxed against the plaintiff.

CONCURRING Opinion.

The plaintiff seeks the return of a deposit made bv her to bind the sale, and has neither alleged nor proved that the defendant had been placed in mofa.

Her counsel argues here “that the plea came too late, that it should have been urged in limine and specially pleaded, that any right to plead same was waived by answering to the merits and going to trial on the issue of sufficiency of title vel nonA

In support Of this view he cites the following from Ware vs. Berlin, 43 An. 536:

*218“In his brief the defendant urges that, as a prerequisite to the bringing of the suit, the plaintiff should have put him in default by offering to return to him the amount paid to the plaintiff and the notes representing the balance of the purchase price of the property. There was no exception filed alleging a failure to make a tender, nor was there any special plea, either separately or in the answer that urged this objection. It is too late to wait until after the trial to make this plea. It should have been pleaded specially or set up in limine. It cannot be urged in the appellate Court for the first time * * *; and the court cites as authority for the foregoing doctrine, Wood vs. Nicholls, 33 An. 745.”

The opinion just quoted overlooked the decision in Livingston vs. Scully, 38 An. 781, in which, after a review of the authorities, it was held that “the want or failure of the plaintiff to put him in mora does not oblige.defendant to except or specially deny that fact; it is the duty of the plaintiff to allege and prove it, else he cannot recover."

Among the authorities reviewed and approvingly cited are the following, which forcibly state the principle involved:

“The putting of a debtor in default is under our a condition precedent to the ■ recovery of damages or the dissolution of the contract. The want of it need not be pleaded in defence and can be taken advantage of at any time.” Hodge vs. Moore, 3 R. 400.

‘‘This putting in default being under our law an indispensable prerequisite to sustain an action of this kind, it was not necessary to plead the want of it specially, nor is it waived by the defence set up in the answer.” Hepp vs. Commagere, 10 R. 524.

It is idle to suggest any distinction between a suit for damages and one for dissolution of contract, when the text of the Code makes none, and applies equally to both.

“It (the putting in default) is a prerequisite to a recovery of damages and of profits and fruits, or the rescission of the contract.” R. C. C. 1912.

The trend of our jurisprudence enforces the precisions of the Code, while Wood vs. Nicholls, and Ware vs. Berlin, ignore them.

I therefore consider that it is our duty, in this conflict of authorities, to give no weight to the two cases last mentioned.

I therefore concur.