
    BUSHNELL vs. BROWN'S HEIRS.
    The vendee ought to be permitted to shew that the property purchased is mortgaged, and suit brought on the mortgage.
    Appeal from the court of the third district.
   Mathews, J.

delivered the opinion of the court. In this case the plaintiff obtained an injunction, by which proceedings were stayed on an order of seizure and sale which had previously issued against him, at the instance of the defendants on certain authentic instruments alleged to have the force and effect of a judgment being executed to secure the price of a tract of land purchased by said plaintiff, at the sale and adjudication of the succession of their ancestor.

The principal ground of opposition to the recovery of the price of the land adjudicated, and consequent proceedings by the via executiva, as stated in the petition for the injunction, is an incumbrance by mortgage on the property alienated. On the answer of the defendants, and hearing of the case, the injunction was dissolved and the original order of seizure sufferred to proceed.

East'n District.

March 1825.

From this judgment of dissolution the plaintiff appealed.

In the course of the trial of the case in the district court, several bills of exceptions were taken; all of which we deem it useless to investigate, being of opinion that in one of them, there is such error, as to require the cause to be remanded. This is to the decision of the judge a quo, by which he refused to suffer the plaintiff to shew that his right and title to the land, were endangered by proceedings actually commenced on the mortgage alleged in his petition. It is a point clearly settled by law, and many decisions, that a vendor of property, who is in danger of loss or eviction, by suit actually commenced, questiona mota, ought not to be compelled to pay the price, unless good security be offered by the vendor to save him from injury.

How far the existence of a previous mortgage, pressing on the thing sold, would authorise the price to be withheld until security was given against its probable clients, is a matter, perhaps, not definitively fixed, either by express law, or a long course of decisions. But in the present case, the plaintiff offered to prove that suit had been commenced on the mortgage from which he feared injury. This we are of opinion he ought to have been allowed to do, as on the existence, or non-existence of such a fact, the judgment proper to be rendered in the cause, must vary.

Watts and Lobdell for the plaintiff, Nicholls for the defendants.

It is therefore ordered, adjudged and decreed, that the judgment of the district court dissolving the injunction, be avoided, reversed, and annulled, and that said injunction be revived to abide until the final hearing of the cause on its merits, and that the cause be remanded for a new trial, with instructions to the judge a quo, to admit legal evidence on the part, of the plaintiff and appellant, to shew, the existence of the mortgage, as stated in his petition and that suit has actually been commenced on said mortgage. The appellees to pay costs of this appeal.  