The judgment of the court was pronounced by

L. Bonnecaze sued M. Grannery upon anote, the payment of which was secured by a mortgage on a house and lot in the town of Baton Rouge. Before obtaining judgment, the heirs of Grannery’s deceased wife intervened, and set up a claim in right of their mother, to the mortgaged property, &c. Exceptions were filed by Bonnecaze to their petition of intervention. Judgment was rendered in favor of Bonnecaze, on his note against Grannery, and no action was at that time taken on the intervention. Execution *167issued, and the property was seized. About the same time, Mrs. Hernandez, in her own right, and as tutrix of her minor children, obtained a writ of seizure and sale against Grannery to sell the same property, under another mortgage. The sheriff seized the mortgaged property, under both writs ; advertised and sold under both on the 6th of February, 1847, when Bonnecaze became the purchaser for the price of $2000; satisfied his own judgment, and paid the balance to the sheriff. On the 11th of February, 1847, he sued out a writ or injunction, restraining the sheriff from paying the money to Hernandez, on the allegation that he was in danger of eviction, “ on account of the suit of intervention aforesaid, which was pending against him.” He made the heirs parties, and asked that his suit of injunction be cumulated with said suit of intervention, which he also prayed might be rejected, &c. Hernandez answered, 1st. That if there was any danger of eviction, it was apparent the purchaser was informed of it before the sale. 2d. That, having paid the price to the sheriff, he could not demand its restitution, or any security until evicted from the property purchased.

On the application of the plaintiff, the case was tried before a jury, who returned a verdict in favor of the defendant. He has appealed from the judgment rendered thereon.

It is manifest, that before the sale the plaintiff was apprized of the danger of eviction, which he now alleges ; he cannot, therefore, under the textual provivisions of article 2535 of the code, suspend the payment of the price. He has no action until he is evicted.

The judgment is therefore affirmed, with costs.