BALDWIN vs. THOMPSON ET ALS., 6 La. 474

Matthews, J., delivered the opinion of the court. In this case the plaintiff having obtained an order of seizure and sale of certain lots of ground in the possession of the defendant as a third possesssor; the latter applied for and obtained an injunction against the

summary proceeding. The action in its origin was hypothecary under the new proceedings established by the Code of Practice. On a final hearing of the case, which seems by the court below to have been considered as compounded of two; the original petition for the order of seizure and the application for the injunction, judgment was rendered by which the provisional injunction was made perpetual, from which the plaintiff appealed.

The cause is complicated and somewhat abstruse in its principles.- It is shown by the evidence, that Baldwin had obtained the lots in question by purchase from Samuel Kohn, who retained a mortgage to secure the payment of the price, which was to be made by instalments as evidenced by certain notes which the purchaser was bound to pay at maturity. Baldwin afterwards sold to John Green, who assumed in favor of the seller the payment of the notes given by him to Kohn, and also the reversion of the mort. gage held by the debtor.

Green sold to Thompson the defendant in the case of the order of seizure and plaintiff in injunction, and Green did not pay and take up Baldwin’s notes to Kohn as stipulated in the act of sale to the former, consequently the original promissor was obliged to pay them as they became due, in order to protect his credit by supporting a character for good faith and punctuality in his dealings.

Having been thus compelled to pay some of these notes, he instituted the proceeding as above stated against the defendant as third possessor. where a person £“yshe“ ”0Ayndbt“ p°|f*y c'uoaHth^rilto gainst the person for whom holms paid. The grounds relied on to obtain the injunction and those on which the court below made it perpetual are, 1st. That the mortgage retained by Kohn the vendor to Baldwin, was extinguished pro tanto, in consequence of the payment of the notes, &c. by the latter, being only an accessary to the principal obligation to pay the price. 2nd.

That the act of sale from Green to Thompson imports no confession of judgment in favor of Baldwin. 3d. That no new mortgage is created by the act of sale from Baldwin to Green, as by that act Green only assumed the mortgage given by his vendor to Kohn, and the payment of the notes secured by it. And that, although, Green is responsible to Baldwin under his agreement to pay those notes which he failed to comply with, yet the latter has no right to proceed by executory process against the property in the possession of Thompson. A considerable difficulty arises in giving a proper

interpretation of this contract, from the vague, indefinite, and unmeaning manner in which the word reversion of Kohn’s mortgage is used in the act of sale from Baldwin to Green. If this expression can be said to mean any thing in the way in which it is used, it must mean that Baldwin in the event of being obliged to pay the notes, the payment of which was expressly assumed by his vendee, then he, Baldwin, should be subrogated to all Kohn’s rights resulting from the mortgage.

But this is no more than would have occurred under express provisions of law, which declare that when xx ' one person pays a debt for another, which he maybe legally bound to pay, ■ or has an interest in paying, then he who pays is subrogated to all the rights of the creditor to whom he has made payment. Now Wfe consider that the debts due'to Kohn, according to the agreement between Green • . and Baldwin, was really the debt of the former, although the latter was also bound to Kohn.

In pursuance of the doctrine of stipulation pour autrui, Green became Kohn’s debtor by means of the act of sale made by Baldwin to the former, for he stipulated expressly to pay to Kohn the debt Baldwin owed. This subrogation revived or rather kept alive in the hands of the person subrogated, all the rights of the creditor notwithstanding the payment made by the person subrogated.

The court below whs therefore in error by considering Kohn’s mortgage as extinct by the payment of the notes made by Baldwin; it may be considered as dead in relation to the former but servives to the latter; who thereby has acquired a right to all KohnVj liens j © an<^ privileges on the property mortgaged, if the act by which the subrogation took place appeared by an authentic document, 2. e. if the payment made by the original promissor in the notes was shown by a notarial act. But the payment is not shown by authentic evidence. The court below was therefore correct in the opinion by which the executory or

summary process was denied to the plaintiff.

There is, however, error in the reasons given in the support _ . . 01 that Opinion, A So where pay o,\'debtBow-by b, according stipulation pour autrui, A becomes c’s debtor. iatlswTthBtopiy on by the iatte°rtó C, which ave secured by mortgage and A fails on’^rftaM^üp ís\he™by°sub¿right^ of mortgage perty*airóetcS1£ a third possessor, ro™ionCm°ifsfbe authentic aooumentmadebyPthé original promissor in the notes must be shown by a notarial act to thereon! scizure The privilege claimed in favor of the seizing creditor as vendor, is no where stated in the pleadings of the cause, consequently ought not to be taken into consideration.

It is therefore ordered, adjudged, and decreed, that the judgment of the District Court be affirmed with costs; reserving to the plaintiff his right of action against Green, and also his right to pursue the mortgaged property in the possession of the third possessor, on proof of payment of the notes in question by authentic evidence.