The opinion
Martin, J.
delivered the opinioti of the court. The plaintiffs claim the amount of two promissory notes, with interest, given for the price of a tract of land, purchased by the * 1 J fendant Reves, and by him sold to his co-defendants ; and pray that on the failure Reves to pay, the premises in the hands of the latter may be sold, under the mortgage in the deed of sale.
1 he claim was resisted, on the the absence of any title to the prelKiái vendors, at the time of the sale There was a claim, by way of damages, and the value of improvements.
The district court, after a verdict for the" plaintiffs, gave judgment against Reves for the amount of the notes, and interest at five per cent.; and that the premises may be sold.
From this judgment, the defendant, Reves» appealed.
It is clear the court did not err—the defendants made no legal defence. The sale took place before the promulgation of the new code, and the law was decided by this court, *236 7 Martin 223 , vol. 6, 523. The vendee could _ « ¶ . r» ¶ •* «•» * • not refuse the chum of the vendor for the price, ⅛6 ground that he had not a title to the and therefore the vendee did not acquire any—unless the latter was actually disturbed by a suit.
There is, however, a bill of exceptions to the charge of the court, who instructed the jury that
1. A buyer,while in the peaceable and undisturbed possession of the thing sold, cannot, by law, withhold the price, simply on a plea of want of title in the vendor.
2. In a suit for the price, the vendor is not bound to shew a complete chain of conveyances to him, and a better title in himself than in the whole record.
3. If the jury were of opinion, from the evidence, that the plaintiff had fraudulently sold the property of another, and the consideration of the sale had entirely failed, they might find for the defendants.
4. The vendee having accepted a conveyance of the vendor, with a warranty, could not require security, unless a suit was instituted against the former.
Scott and Patterson for the plaintiffs— Thomas for the defendants.
The first, second, and last of these propositions, are in perfect accordance with decisions of this tribunal. See the cases already cited.
The third might have, perhaps, been objected to by the plaintiffs, as irrelevant, there being no allegation of fraud. Certainly it was more favourable than injurious to the defendants. But their counsel urges it was of the latter cast, being an affirmative pregnant with the negative that, unless there was fraud, the jury could not find for the defendants. Admit this, the negative proposition would be in accordance with the three of which we have expressed our approbation.
It is, therefore, ordered, adjudged, and decreed, that the judgment of the district court be affirmed with costs.