delivered the opinion of the court.
The plaintiff states that he and one Holmes, in 1829, purchased from the' defendant a tract of land for seventeen hundred and fifty dollars, with interest at ten per centum from the first of March, 1828; and gave in payment a bill of exchange on William Bullitt, of NeW-Orleans, for seven hundred and fifty-eight dollars and sixty-seven cents, (of which one hundred and seventy-five dollars were for interest on the whole amount up to March 1st, 1829,) and two promissory notes payable to Leroy Stafford, and by him endorsed for five hundred and eighty-three dollars and thirty-three cents each, payable on the first of March, 1830 and 1831, with interest from the first of March, 1829. No special mortgage was retained by the defendant for the purchase money : But on the contrary,the deed expresses the facts as above set forth, and declares that the payment of eleven hundred and sixty-six dollars and sixty-seven cents, and interest, is secured by the two notes aforesaid. That the plaintiff thinking it might be expedient and necessary to mortgage the land, proposed to the defendant to forbear retaining any privilege or mortgage* and to be satisfied with personal security, to which the latter assented; and the plaintiff accordingly gave Bullitt and Stafford as his sureties: Notwithstanding which, the said defendant has sued out a writ of seizure and sale, and his petition does not allege any notice to the plaintiff of the dishonor of the bill; and he claims the sale of the land for the payment of seven hundred and ninety-one dollars and sixty-seven cents, with interest from March 1st, 1829, i e. for five hundred and eighty-three dollars and thirty-three cents, besides interest on the first note, and the balance of said sum of seven hundred and ninety-one dollars abd sixty-seven cents, on account of the bill aforesaid, with interest. The petition concludes by a prayer for a writ to enjoin this sale, which accordingly issued.
*112The defendant pleaded the general issue, and in answer to interrogatories, put to him by the plaintiff, that early in 1828, he contracted with the plaintiff and Holmes for the sale of the land for seventeen hundred and fifty dollars, payable in cash or in three payments, adding interest at ten per centum from the first of March. That the vendees were put in possession, and made a crop in 1828; that the title was not given till some time in 1829. That previous thereto,- the plaintiff mentioned his desire of making the first payment with the accrued interest by a draft, negotiating a loan in bank and paying the two last instalments, asked the defendant to facilitate this operation ; and the latter agreed to give the title without reserving any special mortgage, provided, satisfactory security was given, and the tenor of the agreement expressed in the deed: so that he might retain the legal privilege of a vendor. With this the plaintiff was perfectly satisfied, and so was the defendant with the security given. The deed was accordingly so drawn and executed; the defendant never intending to divest himself] of his legal privilege as vendor. The two notes were endorsed by Stafford to induce the defendant not to retain a, special mortgage.
The injunction was dissolved, and the plaintiff appealed.
On the trial the plaintiff gave in evidence the notes and draft annexed to the petition for an order of seizure and sale.
The defendant gave in evidence the sale of the land, and| the draft and notes given by the vendees.
The appellant’s counsel has contended that the defendant’s! privilege was dissolved by his receipt of the draft and notes in payment, and relied on the case of Abat vs. Syndics of Nolte et als. 6 Martin, N. S. 636.
The deed shows that for the first instalment, on which failure of payment is the ground of the order of seizure, th plaintiffs gave their draft, which is in the words of the deed.] “ when paid will be in full,” &c. It is, therefore, clear thai until the draft was paid, the defendant was the creditor of his] vendees for the price or consideration of the sale, and if so, he] was, therefore, a fair legal creditor.
*113It has been urged on the authority of the case of Wray vs. Henry, 10 Martin, 222, that the order of seizure and sale issued improperly, as the draft was not an authentic act, and the judge at his chambers had neither the authority nor the means of testing its genuineness. It has already been noticed that by the very words of the deed the draft was not a payment until its amount was actually received. Until then the consideration of the sale or price of the land was due on the authentic act of sale, the production of which established the existence and amount of the debts. The negative fact, the non-payment of it, was like in all similar cases, to be established by the creditor’s oath.
It is further urged, that the petition ought to have alleged a notice to the plaintiff of the dishonor of the draft. Nothing but the payment of the draft could affect the defendant’s claim; because till then the deed said the price of the sale remained due. If through the defendant’s laches the plaintiff received any injury, the latter is certainly entitled to remuneration. This he may demand by a separate action; and perhaps he might have pleaded it in the present case: but as he has not done so, we need not examine the question.
It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.