
    Antonio Hernandez v. His Creditors.
    Whon property is sold at Sheriff’s sale, and the party causing the sale to ho made is not able to put the purchaser in the enjoyment of the premises, nor of the rents, he has a right to refuse payment of the price.
    from the Fifth District Court of New Orleans, J.
    
      Durant & Hornor, for plaintiff and appellant. C. Roselius, for defendant.
   Land, J.

On the 17th of June, 1858, the Sheriff, by virtue of an order of court, adjudicated to Bernardo Rodriguez the fixtures and unexpired term of the lease of the property, at the corner of Gravier and St. Charles streets, in this city, for the price of three thousand, six hundred and fifty dollars.

The purchaser refused to pay the price of adjudication, and the syndic of the creditors of the insolvent took a rule on him, to show cause why he should not comply with the contract.

The answer of the purchaser is as follows :

“ That he has been always ready and willing to comply with the terms and conditions of the adjudication of said lease as soon as the said syndic shall put him in possession of the premises leased ; that the greater portion of said premises is in the possession of tenants, who claim to have a right to retain the occupancy and enjoyment of said premises until the first of November next, under a lease from said Hernandez, to whom said tenants allege that they have given their notes for the rent up to said period, which notes said tenants allege they have discounted, and that they are not bound to pay any rent, nor to quit said premises until the first of November next.”

The facts of the sub-letting of the premises by the insolvent, the giving of promissory notes for the rents, and the transfer or sale of them by the insolvent, and the possession of the premises by the sub-tenants, as alleged in the answer, were proved on the trial of the rule.

• The purchaser was entitled to the possession and enjoyment of the premises, for the unexpired term of the lease, or at least to the rents for the unexpired term. But in consequence of the sub-letting by the insolvent, and the possession of the sub-tenants, and the payments of the rents in advance, the syndic could neither put the purchaser in the enjoyment of the premises, nor of the rents, and was, therefore, unable to comply, on his part, with the terms and conditions of the adjudication, and the purchaser had the right to refuse payment of the price.

The District Judge deducted from the price of adjudication the amount of rents paid by the sub-tenants in advance, and rendered judgment against the purchaser, for the balance of the price.

This judgment has been acquiesced in, without prejudice to the right of appeal, and will, therefore, be affirmed.

Judgment affirmed, with costs.

Yoorhies, J., absent.  