
    Louis Ferraud, Agent, &c. v. William C. C. Claiborne.
    Though a purchaser of real estate who has given notes for the price, payable at a future day, and bearing interest from date if not punctually paid, may be authorized by the agreement of the parties to delay their payment until the erasure of a mortgage existing on the property, he will be bound to pay interest during any delay . in making such erasure. Per Curiam : The defendant might have relieved himself from interest, by depositing the amount of the notes; but not having done so, and being in the enjoyment of the property, he is liable for the interest. He cannot enjoy, at the same time, both the price, and the thing sold. C. C. 2531,2535,2537.
    Appeal from the City Court of New-Orleans, Collins, J.
    
      Barthe, for the appellant, cited 19 La. 117.
    
      Roselius, for the defendant.
   Morphy, J.

This suit is brought on two notes, one for #228, and the other for #78, subscribed by one H. Droz, in payment of real estate, and which the defendant assumed to pay to the plaintiff, having since purchased the property from Droz. In the sale to the latter it had been stipulated, that these notes should remain deposited in the hands of the notary who passed the act, until the vendor should show that he had cancelled a previous mortgage existing on the property; and it was further stipulated that, in case of non-payment, they should bear interest at the rate of ten per cent per annum, from their maturity until paid. The notes having been lodged for collection by the notary in the Consolidated Bank, were both protested for non-payment, the first on the 2d of October, 1837, and the other on the 31st of March, 1838. The defendant says that he has always been ready and willing to pay the capital of the notes sued for, but that he is not bound to pay any interest, or costs of protest, as he was not liable to pay the notes until the mortgage existing on the property sold to him was cancelled, and that said mortgage was raised only a few weeks previous to the institution of this suit, since which time he has offered to pay the principal of the debt claimed. There was a judgment below for the notes, but with interest only from the 25th of February, 1842, the date of the judicial demand. From this judgment the plaintiff has appealed, and asks that it may be so amended as to allow him interest from the maturity of the notes. We think that the judge erred. The defendant, by assuming to pay the notes of his vendor, has become bound for them in the same manner as the latter was. Admitting that the agreement in the sale might be considered as authorizing Droz to suspend, or delay the payment of these notes until the erasure of the mortgage, it does not necessarily follow that interest was not to run ex morá, as a compensation for the fruits of the thing sold. The agreement placed him in the same situation as the law would place a buyer disquieted in his possession, or having a just fear that he will be disquieted by an action of mortgage, or any other claim. He may suspend, or refuse the payment of the price, until the seller has restored him to quiet possession, unless the seller prefer to give security. In such a case, we have held that interest runs ex morá, although not exigible. 19 La. p. 148. See also Erwin v. Green et al, decided in March last. The defendant might, indeed, have relieved himself from the payment of the interest by depositing the amount; but not having done so, and having been in the enjoyment of the property, he is liable for the interest claimed, in equity and law, as well as under the express stipulation in the deed of sale to Droz. It would be unjust that he should, at the same time, enjoy both the price and the thing sold. Civil Code, arts. 2531, 2535, 2537.

It is, therefore, ordered, that the judgment of the City Court be so amended as to bear interest, at the rate of ten per cent per annum, on $228 from the 2d of October, 1837, and a like interest on $78 from the 31st of March, 1838, until paid; and that it be affirmed in all other respects, with costs.  