
    
      DUPLANTIER vs. PIGMAM.
    
    East. District.
    Feb. 1814.
    évíetíonf^inay menth°ld pay"
    interest due, ón evfery instalment payable, serbasU*pos-seswon otttie
    Hennen, for the plaintiff.
    This is an action brought on a mortgage/made in favour of the plaintiff, as vendor, by the defendant, as vendee, the security of the parchase money, of six lots of ground, of which the defendant has been *n Possession since the sale. '
    The purchase money, as secured in the sale 1 J1 ■ and mortgage, with interest on each instalment as it became due, is claimed by the plaintiff and the payment resisted by the defendant, principally, because of an incumbrance, made on the lots , by the plaintiff, in favour of Madam Delor, from whom he purchased. It is insisted that, until this mortgage be raised, the plaintiff has no right to demand the purchase money, and that, as the defendant has not been in mora, no interest can be claimed. The existence of the mortgage, the defendant represents as an eviction, and a violation of the vendor’s warranty.
    To this, I answer that possession of the thing sold, given by the vendor to the vendee, with the title of ownership, is a fulfilment of the obligation of the vendor. Le contrat de vente est un contrat, par lequel Pun des cnntractcmts⅜ qui est le vende ur, s'oblige envers P autre, de lui faire avoir librement, a titre de propriétaire, une chose, pour une somme d'argent, que Vautre contractant, qui 
      
      est Vachcteur, s’oblige réciproquernent de lüi payer. Un vendeur qui vené une chose, dont it eroit> de bonne fot étre le propriétaire, qmiqu’il ne le salt pas, ne s'oblige pas précisément a en transférer lapropriété. Hactenus tenetur tit rem emptori liceat, non enim ut ejus facial. Dig. 19 tit. 1, sect. 30, s. 1. Pothier, contrat de vente, art. prél. & 48.
    Possession as owner, with his title, the defendant acknowledges ; neither deception, suppress¾> veri, nor want of good faith can be objected to the plaintiff; for, in his act of sale, to the defendant, he recites his own title, which discloses the'mortgage, given by the plaintiff, to Madam Delor, his vendor. The defendant then, by this recital, had presumptive notice of this incumbrance, which is so violent that the court will not allow of its being controverted. Powell Mortg. 569, Stigden's law of vend. 492,499, 5 Bacon 65, 73 and cases there cited.
    
    The defendant now complains with ill grace of that, as a cause for non payment, which he knew when he contracted.
    CAN'he, with better founded pretentions, say that the mortgage amounts'to an eviction! ? Until an action has . been instituted on the mortgage, he cannot, with the least appearance of justice, pretend that he has suffered an eviction ; or even that he is in danger of it. Strictly, the vendee has no right td £»n action on the warranty of the. vendor, until by the execution of a definitive judg-rnent he has been dispossessed. Non dicitur res evicta per solam setitentiam, sed per ejus executio-pem. Mvicta res emptori, noil videtur, nisi ah-eta sit ei possessionem, unde notant sola sententid possessionem non amitti, sed ipsa tantum exe-cutione. Gothofredi comm. in Dig. 21 tit. 2, L 57. Pothier, contrat de vente, art. 88.
    Should an action be instituted by Madam Delor, on her mortgage, the plaintiff has even then a right to insist on the payment of the purchase money by the defendant, on giving him secu- , rity to save him harmless in the action. The plaintiff has done more, he has offered to obtain the cancelling of the mortgage, on payment of the purchase money. Should he fail in this, and be unable to secure $he defendant, he has a right to insist on the deposit of the money in court. Contrat de vente, art. 278,281. Code Civil, 361 art. 85.
    That interest is due on the amount of the purchase from the expiration of every instalment, the authorities are very positive. L'acheteur doit les intéritsdu prix, non seulement avant qu’il ait ' été mis en demeure de paper, mais mime pendant le prods sur la demande qui luí est faite par un tiers de délaisser, qumquyil ne soit pas oblige de payer a son vendeur qui ne lui offrepas de caution. Contratde vente, art. 284. Dig. 19, tit, Í, /. 1⅜ #.20. Domat, liv. 3, tit. S, s. 1, §.4, 2 Argou 360, 391. ' ■
    Turner, for the defendant. The judgment of the district court condemning the defendant, ought to be reversed, because it appears to be given contrary to the principles of law and equity and is erroneous on several grounds.
    1. Because it is given for the whole of the purchased price of sundry lots of ground, sold by the plaintiff to the defendant with * warranty against all incumbrance and which lots are incumbered by heavy mortgage debts by the plaintiff to Madam Delor :
    2. Because the decree gives the plaintiff interest, on his debt, from the day stipulated for payment, when no interest was contracted for, and when it appears no payment of the principal could have been made with safety, and when the plaintiff had no right to demand the payment in consequence of the existing incumbrance:
    3. Because the court decreed costs against the defendant; when it appears very manifest the plaintiff had not a right to coerce payment when he sued.
    I. U eon the first point, it is, clear that, by the general principles of equity, as well as by the express .provisions of the civil code, no action can be maintained for the price «£ kpd, wifi 1st the Purc^aser ⅛,⅛ danger of losing it, by defect of title by previous incumbrances unless the vendor shall give security to indemnify him against such incumbrances or defective title. And for the support of these principles we rely on these cases.—1 Etj. Ca. Abr. 27. C. 2.—1 Domat 5,1. tit. 2. S. 4. art. 11. and 67. Civ. Code 360. art. 85.
    But he denies we are under the protection of' that article of the code, because no suit has been instituted against us, on Madam Delor’s mortgage. This objection is without force, the law does not mean suit, it means the right to sue, in court. Any ope having a right to sue is deemed in law, to have an action. No one can with truth be said to have an action, who has no right to sue in court. This by consulting the definitions of an action, in books of authority, will appear manifest. Cooper's Just. 326. Doer. Plac. 26. Co. Lit. 285. Wood's Inst. 533.
    A Re lease of actions, is a release only of the right to sue in court for the recovery of the thing» So when it is said actions are forfeitable by war. Am. Law Jour. 57.
    Actions are real and personal : a real action by the civil law, is an action for a* specific thing. Cooper's Just. 326, 7, s. 1, 7,17 and note 640.
    It is the common course of a court of,equity to enjoin the payment of the purchase money, until a tide is made, or the incumbrance removed. When any such exist and are discovered before payment of the price. This is done ta prevent multiplicity of suits and possible loss. Sag. law vend, 345, 1 Vsz- 88,2 Vez. 354, 4 Ero. 394,'
    II. The second objection results from the principles established by the cases and books already cited, which, indeed, may be ail embraced in one sentence: “That he, who seeks equity, must first do equity.” Kahns' Princ. Eq. 54. Eras. Max. 1.
    The defendant could not with propriety be said to be in default of paying, when the plaintiff is in default. The land is under incumbrance and the plaintiff has no right to compel payment, until he , does one of two things, to wit, either remove the incumbrance or give security to indemnify against it: neither of which has he done. With what right then is he clothed, to demand the payment of interest : the defendant did not contract to pay it, neither is he in default. Moreover, the thing is barren, it bears no fruits, and there arises no equity from the enjoyment of possession. They were naked town lots, when bought. 1 Domat^ 63 art. 6.
    III. On the third objection : the defendant ought not to pay costs, when it appears the plaintiff brought suit before he had done on his pari all that was requisite to entitle himself to the debt. Had he done all he is bound to do, this suit would never have had existence. It is not fair to impose costs on the defendant, when his defence is found to be and legal, against the plaintiff’s demand. Costs are hi the discretion of the court, and in this case, the just exercise of that discretion is asked for, by the defendant, with confidence upon the principles before laid down.
   By the Court.

This suit was commenced by the appellee, as plaintiff, in the late city court, and from the decision of that court an appeal was taken to the superior court of the late Territory of Orleans, and the suit transferred to the district court of the first district ; and from a final judgment there rendered, it is brought, by an appeal, before this court. The action is instituted on certain sales of lots made by the appellee, to the appellant, which are situated in the fauxbpurg, and are part of the plantation purchased by Du-plantier, the appellee, from Madam Delor Sarpy, and conveyed to him by a public act of sale, bearing date on the 16th of June 1807, by which the whole property is mortgaged, to secure the payment of the purchase money. The acts of sale from the appellee to the appellant, for the lots, bear date in August and November of the same year, and in them a mortgage is reserved on the property, in iavor of the seller ; the payment of the price was to have . been made by instalments, the first of which was duly paid ; and the purchaser failing to pay the latter, the suit was commenced as above stated.

The counsel for the appellant, who was defendant in the court below, contends that he is not bound to pay for the property in question, on two grounds.

1. On account of the probability of being disturbed in his possession, and the danger of being evicted by Madam Delor Sarpy, the seller to Duplantier: as she holds a mortgage on the property, to secure the payment of the price, 80,000 dollars, of which a part appears yet to remain unpaid.

2. Because the seller, Duplantier, has altered the plan of his fauxbourg, so as to lessen the value of the lots purchased by the appellant, and this since the sale. And they further contend that they ought not to pay interest on the price, and that the judgment of the district courtis erroneous in.having allowed it, as is cannot legally be recover-red, until the purchaser shall be secured in his quiet possession ; and that no interest ought to be paid, because the thing sold yields no fruits or profits. '

I. As to the first ground of opposition made by the appellant, to the payment of the price, this court is of opinion, that he is well supported in it by the Facts and the law applicable to the case. Theie carl be no doubt but that he is liable to be disturbed in his possession, and in danger of evie* tion, so long as Madam Delor’s mortgage re» mains unsatisfied, which appears to be the case, and that to a very large amount : add to this the great danger of total loss in consequence of the probable insolvency of the seller ; and it does not appear that any security has been offered, on his part, against these dangers to which the purchase? is so evidently exposed. The law is positive and explicit, that if the buyer discovers before payment that he is in danger of eviction, and makes this appear, he cannot be compelled to pay the price, till after he is secured in his possession. 1 Domat, book 1. c. 2 sect. 3, art. 11, in support of this rule is cited the digest.

The second objection to payment made by the appellant, might possibly he good, so far as to diminish the price, or even extend to a rescission of the contract; but not being supported by such evidence as would enable the court to decide with any kind of certainty, and, indeed, having been almost abandoned by the counsel, in the argument of the cause, it is thought unnecessary tó make any further observations on this point.

II. As it relates to the refusal to pay interest, it is Unnecessary to enter into any lengthy discussion on that subject, as it has already been decided in this Court, in the case of Syndics of Segur vs. Brown, ante 93, that where the price is owing for bad or any thing which, from its nature, may produce fruits or revenue, there interest is recoverable from the period at which the money became due, tho’ no demand of payment has been made—whether the land be one acre, or' an hundred, is immaterial. But, in the present case, it is contended that interest ought, not to be recovered, because the buyer is not bound to pay the original debt, until he be secured in his possession ; and this objection appeared to the court to have considerable weight ; however, on examining the law, we find that it is the actual possession and enjoyment of the property, which gives the right to the seller to claim interest, and that, so long as the purchaser remains in possession, he is bound to pay it on the price, unless he offer the money to the seller, and consign it for his use, in case he refuses to receive it ; it being considered unjust that the purchaser should, at the same time, enjoy both the price and the thing sold. In support -of this doctrine vide 1 Domat 397, book 3, c. 5. 11 Pothier con. de vent. 294 no. 284 and the Digest, book 19, law 13 c. 20, 21.

From an examination of the record, it does, appear that the judge and jury in the court below, intended to found their verdict and judgment, on the principles herein acknowledged as law, by this ccmrt* But from the manifest uncertainty in the verdict, and as the district judge has not, in his judgment thereon, rendered it more explicit, it becomes the duty of this court to reverse and annul the judgment of the district court ; and, proceeding to render such judgment in the case as ought there to have been given : it is ordered adjudged and decreed, (and we do hereby order, adjudge and decree) that the appellee, Duplantier, do recover from the appellant, Pigman, the sum of three thousand three hundred and.thirty three dollars and thirty three cents, with interest at the rate of five per centum per an. on the amount of each instalment, from the period, at which it became due. But it is hereby provided, that the said appellee shall not be at liberty to take out execution, on this judgment, until he tenders a release of the mortgage, which Madam Delor Sarpy holds on the property purchased, by him from her, so far as it relates to the lots, sold by him, the said appellee, to the appellant, or offers to him good and sufficient security, to be approved of by the district court of the first district, to save him harmless from all disturbances or evictions which may happen to him in his possession of said lots, by or on account'of said mortgage, and that the appellee pay the costs of this appeal. And it is further ordered that this judgment be certified to the district court.  