
    WOODRUFF vs. WEDERSTRANT.
    APPEAL FROM THE COURT OP THE THIRD DISTRICT.
    The purchaser is not bound to pay until his vendor removes the encumbrance which exists, in virtue of the mortgage in favor of the creditor at whose suit the land is sold.
    The purchaser isnotbound to pay until his vendor removes the encumbrance which exists in virtue of the mortgage in favor of the creditor at whose suit the land is sold.
   The facts are stated in the opinion of the court, delivered by

Portee, J.

A case between the same parties, and involving the same subject matter, has been already before this court; it will be ■found reported in 8 Martin, N. S. 708.

The evidence produced in this cause, though adding some new features to it, in no respect changes the legal rights of the parties. It is shown the defendant’s obligation to pay the plaintiff, fell due on the same day, that of the plaintiff was payable to the creditor at whose suit the property was sold; and that this extension of time to the plaintiff was in consideration of his selling the property to the defendants, and for their accommodation. But nothing shows a novation of the debt, or that the creditor intended to look to the defendants for payment. The obligation of the plaintiff to discharge the debt was in no respect weakened. There was certainly no moral wrong in his conduct; but there was a failure to comply with his pecuniary engagements, which caused the property the defendants had purchased from him to be seized and sold, and for this failure he is justly responsible. The defendants cannot be considered in fault, for they were not bound to pay until the plaintiff removed the encumbrance which existed in virtue of the mortgage in favor of the creditor at whose suit the land was sold.

It is, therefore, ordered, adjudged, and decreed, that the judgement of the District Court be affirmed, with costs.  