
    
      BOUTHEMY'S EX’R vs. DUCOURNAU.
    
    Appeal from the court of the parish and citv of New-Orleans.
    If the vendor covenant u> clear the estate of an incurn-brance, ínteres; will nr)tbe«i-loavcd on the price till he mkI a>e knowledge of ⅛ dew
   Mathews, J.

delivered the opinion of , the

court. This suit is brought to recover the i . — 1 instalment of the price of a tract of land, which belonged to the estate of the deceased, and was sold by the plaintiff to the defendant. The act of sale states the existence of a mortgage, on the premises in favour of Berger, the vendor of Bou-themv, which the executor covenanted to have raised and cancelled, before the last instalment should become payable. The note, which was given for it, was made pavable on the first of March, 1815, but the vendee in justice and equity and according to his stipulation in the act of sale, was not bound to pay till the propertv should be 1 J it. freed from the incumbrance of the mortgage in ^avor 0£ gcrger The amount secured by that mortgage, as it now appears, had been paid off and discharged long before the time, at which the last instalment of the price became due, according to the words of the note given for its payment. But this was not made known to the register of mortgages, so as to have the mortgage regularly raised and cancelled, neither was the knowledge of it communicated to the defendant and appellant. It seems to have been a late discovery of the plaintiff" and appellee himself Payment substantially extinguishes a mortgage, and as in the present case, the register had raised Berger’s, in obedience to an erroneous order of the parish court, now, that it is clearly ascertained to be extinct by payment, the plaintiff ought to recover.

The parish court having allowed interest, on the amount adjudged, from the time at which it appears to have been payable, according to the expressions in the note, it is contended against this part of the judgment, that the principal was not due, till after the discharge of Berger’s mortgage was explicitly made known to the defendant, and consequently, no interest ought to have been allowed before that time. This knowledge does ° not appear, to have been brought home to the defendant, till the trial of the present suit. We are, therefore, of opinion that the paiish court erred.

Morel for the plaintiff, Workman for the defendant.

It is, therefore, ordered, adjudged and decreed, that the judgment be annulled, avoided and reversed, and this court proceeding to give such a judgment, as, in its opinion, ought to have been given in the parish court, it is ordered, adjudged and decreed, that the plaintiff and appellee, recover from the defendant and appellant, two thousand and twenty five dollars, and that the former pay costs in this court.  