delivered the opinion of the court.
The present plaintiff having been sued by the ancestor of the defendants, pleaded that the obligation upon which the suit was brought, was given for a part of the price of a tract of land. That he was in danger of eviction of a part of the land, in consequence of an action of boundary instituted by one Wall, and then pending; and that if he should lose a part of the land for which the note was given, he would be entitled to a diminution of price. Judgment was finally rendered in favor of the plaintiff for the amount of the note, but the defendant was ordered, in conformity to article 2536 of the code, to deposit the amount thus recovered with the clerk of the court, and in default of his making such deposit, that the land be seized and sold by the sheriff to satisfy the judgment, and that he deposit the same with the clerk..
The defendant in that case having failed to deposit the money, the sheriff proceeded, the land was seized, sold at a yearls credit, and purchased by the defendant himself, who gaye a twelve months’ bond. An execution having issued on this bond, the sheriff was arrested by an injunction obtained by him on the following allegations among others, to wit; that since the rendition of the judgment in favor of Hunter, the case of Wall vs.' Spurlock had been finally decided by the Supreme Court, and he had been evicted of about one-third of the land sold to him, whereby he is entitled to have the note sued on by Hunter cancelled, etc.'
The defendants, in answer, deny that the plaintiff in the injunction has been evicted of any part of the land purchased by him, alleging that the action instituted by Wall was one *569of boundary alone. They further allege, that the plaintiff is no longer the owner of any part of the land, and that he had sold the same to one Morris without any warranty, and that thereby he is debarred from setting up,any claim for warranty himself, and has lost any claim to indemnity on account of the supposed eviction.
purchaser of a pendency of a suit to evict him, vithoutrecourse ^sts^lm^elf of'aii title before final judgment of eviction, heis ImfcúnnotS h.is yenclor % diminution ot the price which he contracted to 1)ay,The injunction was perpetuated, and the defendants appealed.
The original judgment certainly contemplated that the money should be brought into court to abide the final decision of the case of Wall vs. Spurlock, .and. it does not appear that the twelve months’ bond was to be considered as money, by agreement of parties. But as the- pleadings in this case present the question as if the money wére in court, and as if the court was now called upon to say whether the plaintiff has a right to withdraw any part of it on account of the eviction, we see no objection to deciding in that form upon the rights of the parties, instead of dissolving the injunction, and leaving the question open until the money shall be deposited, according to the judgment in the first instance.
The record shows, that pending the suit of Wall vs. Spurlock, the plaintiff sold the land in controversy to Morris, expressly exempting himself from all obligations as warrantor, except as against himself and his heirs, and the purchaser declared in this act of sale, that he was well acquainted with the title, and aware of the danger of eviction, and was contented to take the land with such limited warranty.
It is clear, therefore, that Spurlock has not been evicted; Having divested himself of title before the final judgment in that case, if he had sold with warranty, the eviction of his , ...... .... „ vendee would have entitled him to a diminution of price, perhaps, on a recourse in warranty against his vendor, but having sold without any warranty, his vendee cannot main- . . , J ’ . . tain any action against him, and he is without interest, 3 Martin, N. S., 423. Pothier, Vente 97.
But it is urged on the other side, that this doctrine of . ° Pointer is successfully combatted by more modern commenta*570tors on the Code Napoleon, and we are referred to Duranfon and Troplong.
When the surety in an injunction is before the court ,on appeal, no judgment for interest or damages can be pronounced against him on dissolving the injunction,The general principle laid down by Pothier is, that the eviction suffered by the successor of the purchaser, gives rise to the action of warranty only so far as that eviction interests the purchaser or his heirs, and he supposes the case of a donation, and the eviction of the donee, and concludes that as the donor is not bound by any warranty, the eviction suffered by the donee interests neither him nor his heirs, and consequently that he cannot exercise the action of warranty against his vendor.
Paulus, it is true, thinks that when the purchaser has given the property purchased as a dowry to his daughter, and she is evicted, the father oqght to have the action of warranty, because he has an existing interest that his daughter should not be without a dowry, even in case he would not be entitled to a return of the dower, in the event of her death during the marriage. Digesi IxxL, t. ii., law 71.
The reason given by Paulus, to wit, that the donor, in the case supposed, has still a subsisting interest, would seem to admit the general principle that when the purchaser has no longer any interest, he cannot exercise the action.
Duranton and Troplong maintain the opinion of Paulus, in opposition to that of Pothier, in the single case of a donation ; they appear to think that the donee has an action of warranty against the vendor of the donor. But that is not the case now before the court. The question is not whether Morris, who purchased at his risk, has, under the terms of his deed, any subrogation to the warranty of Spurlock, but whether Spurlock, after parting with all his right, title, and interest, can exercise any action on account of the eviction of his vendee. Neither of the authors cited appear to controvert the position in relation to a sale.
The injunction, in our opinion, ought to have been dissolved, on the merits, and it is our duty to pronounce such judgment as ought to have been rendered below. But the surety on the injunction bond is not before us, and no judgment for interest or damages can be pronounced against him. *571The act of 1831 (page 102, se.ct.ion 3,) makes it the duty of the couit, in case the injunction be dissolved, to condemn the plaintiff and surety in solido to pay interest at the rate of ten per cent, per annum, and damages not exceeding twenty per cent., unless damages to a greater amount are proved. The act does not say from what date the interest is to run, and in the present case we think it should run from the .time judgment was given below on the injunction. There ,is no sufficient evidence of special damages.
The act of 1831 relative to injunction, does not say from what date the interest is to run, when they are dissolved, but in this case it is computed from the time the judgment was rendered in the court below.It is, therefore, ordered, adjudged, and decreed, that, the judgment of the District Court be avoided and reversed ; and proceeding to render such judgment as ought, in our opinion, to have been given below, it is further adjudged and decreed, that the injunction be dissolved, and that the defendants recover of the plaintiffs ten per cent, interest on the amount due upon the twelve months’ bond from the 22d of May, 1838 ; and it is further ordered, that the sheriff proceed to make the money, and pay it over to the defendants, and that the plaintiffs pay costs in both courts.