Boisblanc v. Markey

IIowell, J. The defendant has appealed from a judgment condemning him to pay several promissory notes secured by the vendor’s privilege and mortgage and given by him as part of the price of certain property sold to him by B. Boisblanc, one of the plaintiffs. His defense is that he has been sued for the said property, and that he is entitled to suspend the payment of the price until restored to quiet possession. Having joined in one action and asked that the vendor’s lien and the mortgage he recognized and enforced against the property sold, and mortgages not being subject to tbe rules of commercial law iii favor of third holders oí commercial paper, all the plaintiffs herein will he considered upon the same footing. The main question is, whether - or not the defendant can postpone payment of the price until the decision of the suit instituted against him for the property, or require security from his vendor. Article 2535 Civil Code provides: “ If the buyer is disquieted in his possession, or has just reason to fear that he shall be disquieted, by an action of mortgage or by any other claim, he may suspend the payment of the price, until the seller has restored him to quiet possession, unless the seller prefer to give security. There is an exception - to this rule, where the buyer has been informed, before the sale, of the danger of the eviction.” The inquiry arises, is the defendant within the exception ? In the act of sale to him from Boisblanc, ono of the plaintiffs, it is declared “ that he does, by these presents,' grant, sell, bargain and quit [722] claim, under guarantee of Lis own acts and deeds only, and of no others, but witb substitution and subrogation to all Lis rights and actions against all precedent and anterior vendors and owners, unto Mr. Peter Markey,” (tLe defendant) tlie property now in controversy. Tlie act also recites Low tlie vendor acquired tLe property and shows that it iiad been proceeded against and sold under tLe confiscation laws of tLe United States, in which proceedings Boisblanc intervened and Lad Lis first mortgage recognized, which Lad been assumed by one S. Wolf, (the party now making the disturbance) as the purchaser of the property from a former owner, and at the sale Boisblanc became the purchaser at a price insufficient to pay the mortgage hold and represented by him. In the sale to the defendant he expressly transfers these mortgage rights without any recourse. This act of sale clearly and distinctly informs tlie defendant of the nature of the seller’s title, and that of Wolf, who now sues for the property as owner, by virtue of that very title recited in the act of sale to him. It is difficult to understand how more direct information could be communicated. We are not now to pass upon tlie validity of the disturbing claim, but simply whether or not the defendant can be coerced to pay the balance of the price pending the suit for eviction, and we are of opinion that he can. It is ordered that the judgment of the District Court bo affirmed with costs.