
    
      FULTON’S HEIRS vs. GRISWOLD.
    
    Appeal from the court of the sixth district.
    The vendee cannot refuse payment of the price, nor can he require surety from the be actually tlcOnm. ⅜° £
    
   Derbigny, J.

delivered the opinion of the .' court. This action is brought by the heirs and representatives of the late Alexander Fulton, to recover from William Griswold the first ins talment of the price of some land by him purchased at the public sale of said Fulton’s estate. Griswold refuses payment on the ground that the land by him bought is ciaimed by other persons. The evidence, however, is not that actions have actually been benight by such persons, but that they bold adverse titles, in consequent of which Griswold is exposed to be evicted. s\ i Á .x Un that evidence the district judge thought it equity}0 that, before Griswold should be compelled to pay, his vendors should make him secure against eviction. From so much of his dec'sion as requires from them this security, the heirs of Fulton have appealed.

It is a provision of our code, originating ip the ancient laws of the country, that “ when a purchaser is disquieted in his possession, by an action on mortgage err any other claim, he may suspend the payment of the price, until the seller has restored him to quiet possession, unless said seller prefers to give security.” But the distyrbance must bean actual disturbance, not an anticipated one: the danger of eviction must be that wbicn arises from an actual suit, not from a suit which may hereafter be brought. Domat on that question has gone farther, when he said, “if before payment, the buyer discovers that he is in danger of eviction,” &c. nut the text of the Roman law does not warrant that interpretation ; the expressions are, “ ante jfáaetium solution, dominii quaestime motat jpraetium eiñptór solvere non cogitur, nisi fide-jussor es, Sfc. Dominii quoestionw mota, means not any discoverv of danger on the part of the |myer? but au actual investigation of the title of ownership: and is consonant with the provision - . i i ot oar code, wtuth gives tins remedy to the purchaser, only in case of a disturbance by an áction on a mortgage or agy ‘other claim, or, as the FrenCh' text expresses it, par une action $oit hypothecaire, soit en revendicetion. So far, and no farther, does the law authorize the buyer to retain the purchase money: and, however, hard may be some cases, in ^yhicii an impending claim, threatens the purchaser with eviction, if does not belong to courts of justice to extend to him the remedy which the law has limited tft the case of actual* disturbance by suit. Event before payment, says Pothier in is contract of sale, no, ¾⅛¾ if thef buyer suffers no disturbance, he cannot require from the vendor any security for the price which is demanded of him. Ciy‘.Códe,3&Q,art.85, *

Baldwin Sf Blanchard fot the plñiütíffg, Póí** ter for the defendant.

* It is, therefore, ordered, adjudged and decreed, that the judgment of the district court be annulled, avoided and reversed; and that the appellant do recover from the appellee the sum of twelve hundred an if fifty six dollars,-with in-téresfat ten per cent from the first day of March, 1818, and costs of suit,  