delivered the opinion of the court.

The plaintiff having purchased several squares of ground in! *538the town of Hurstville, from the defendant, and having failed to make ^¡s payment, the latter obtained an order of seizure and sale, whereupon the present suit was brought to rescind the sale of said squares, and a provisional writ of injunction sued out to suspend the execution of the order.

The alleged ground of rescission is, that the vendor exhibited a plan of the new town, on which a rail-road was marked with a depot designated near the squares purchased by the plaintiff, although no such rail-road or depot existed at the time of sale ; and every probability of the establishment of such a road has long ago vanished. That this was done with the view of deceiving purchasers ; and among them the plaintiff.

The defendant pleaded the general issue, and that the plaintiff had a clear knowledge of his intentions, which were plainly stated and explained at the time of the auction sale and in the advertisements which preceded it.

The injunction was dissolved and there was judgment in favor of the defendant; from which the plaintiff appealed.

. ... The plan of Hurtsville contradicts the allegations in the petition; the inscription on the plan being, “Nashville Rail-Road pi’°jected.” The advertisements, which preceded the auction, announced that one half of the lots in the town, only, would he sold, and the other half reserved to be offered to the Nashville and New Orleans Rail-Road "Company for the purpose of building a branch road to the designated depot in Hurstville ; jn case ^ was not accepted before the completion of this . x 1 road to Nashville, then, these squares or lots shall be sold for the purpose of constructing a branch of said road.

It appears that the offer was made to the New Orleans and Nashville Rail-Road Company and declined, for reasons which entirely exculpate the defendant; and as on this refusal he was not hound to sell the reserved lots for the purpose of making a branch rail-road to Hurstville, until the main road reached Nashville, a period which has not yet arrived, he is not in mora, and the complaint of the plaintiff is therefore premature.

The plaintiff’s counsel has further contended that the defen*539dant has made a cession of his property to his creditors and is unable to comply with the conditions of the sale. The cession was neither alleged nor proved, and consequently cannot he examined or noticed in this case.

It is therefore ordered, adjudged and decreed that the judgment of the District Court be affirmed with costs.