
    P. N. Faisans v. Samuel Moore.
    Plaintiffs sued for the specific performance of a contract, by which defendant agreecl'to buy of him certain land free from incumbrances: Held, that plaintiff, in order to maintain his action, should have done all required of him by law to put the defendants mora; 0. 0.1907,1908. Besides executing an act of sale of the land to defendant he should have procured the receipt of the Tax Collector and the certificate of the Recorder of Mortgages, showing that the property was free from incumbrances.
    APPEAL from the Fifth District Court of New Orleans.
    
      St. 'Paul & Bcmny, for plaintiff. Griffon, for defendant and appellant.
   Merrick, C. J.

The plaintiff having in the month of July, 1853, contracted to sell to the defendant three lots of ground, within the district drained by the draining company, for the sum of $1600, brings this action to compel a specific performance of the contract.

He alleges that the price was to he paid in cash, that the defendant paid four hundred and twenty dollars, and the residue was to he paid at the signing of the title; that although the plaintiff has offered to perform the contract on his part, and demanded a compliance on the part of the defendant, yet the defendant refuses to make payment.

The defendant in his answer admits the contract for the property clear of in-cumbrances and the payment of $420, but denies generally the other allegations of the petitioner, and avers that there is a judicial mortgage on the property in favor of the draining company, and avers his willingness to receive the title so soon as the mortgage in favor of the draining company is satisfied.

The case appears to have been tried in the absence of defendant’s counsel.

The judgment of the lower court decreed the defendant, upon the plaintiff’s satisfying the claim of the New Orleans Draining Company and all charges incident thereto upon the lots, to pay to the plaintiff the sum of $1180 and interest, with a proviso that the judgment should only take effect after the plaintiff shall have filed in court a full disclaimer of all the title to the said property. This judgment was signed on the 25th April, 1865. On the 30th day of May this further order was entered on the minutes “ on motion of Si. Paul & Bouny, of counsel for plaintiff, and on filing in court a duly certified copy of a deed of sale from said plaintiff to Samuel Moore, defendant,made in conformity with the judgment herein. It is ordered that said judgment be declared specifically performed so far as plaintiff is concerned.”

The defendant appealed from the judgment rendered the 25th day of April, 1855.

He contends that he has not been put in default, the property being incumbered with taxes and the mortgage in favor of the draining company. Conceding that the indorsement upon the titles of Nov. 29, 1853, by which LeBlanc and Boss certify that they delivered the letter to the defendant, was sufficient proof of such delivery ; still, we do not think the defendant has been put in default.

The only proof of the contract is the admission in the answer that the defendant agreed to buy the property free of incumbrances, and his parol declarations to the same effect, and his refusal to take the property on account of the privilege of the draining company.

This being the evidence on which plaintiff must rely to prove his demand, it makes it incumbent upon him to show that the mortgage of the draining company has been extinguished.

Moreover, to put the defendant in mora, the plaintiff should have done all that was required by law of him on his part; C. C. 1907, 1908 Besides signing the act, the tiling to be done on his part was to procure the. receipts of the Tax Collector and a certificate from the Recorder of Mortgages .‘¡lowing that the property was free from incumbrances. Acts 1848, p. 79, Sec., t ; C. C. 3328.

It is, therefore, ordered, adjudged and decreed by the court the judgment of the lower court be avoided and reversed, and that there hr iiu.gmont in favor of the defendant, as in case of a non-suit, and that the plaintiff pry the costs of both courts.  