TULANE vs. WILCOX, 11 La. 50

Marlin, J., delivered the opinion of the court. The defendant is appellant from the dissolution of an injunction obtained to prevent the execution of an order of seizure and sale, which he contended had been irregularly-issued ; the plaintiff having claimed such an order, on a sub-rogation of a mortgage creditor of the defendant, which it was contended was not simultaneous with the payment made to the creditor. The plaintiff was the endorser of the defendant’s note, secured by a mortgage, and which he paid in bank.

An order of seizure and sale, which he obtained on that payment, was succesfully opposed, on the ground that it had been issued without authentic evidence of the payment. He thereon obtained an authentic aet of subrogation, and the order of seizure and sale, the execution of which was enjoined by the present plaintiff. This act recognizes the payment made by the plaintiff, and furnished him the authentic evidence, the absence of which caused his failure on his first attempt; he now shows, by authentic evidence, that he paid a debt of the defendant for which he was bound as surety.

A legal subrogation clearly results from that payment. Louisiana Code,

article 2157, No. 3. The conventional subrogation being posterior to the payment, would not avail him; he does not depend upon if, but relies on the legal, and uses the act of conventional subrogation, merely because it contains authentic evidence of the payment. It is, therefore, ordered, adjudged and decreed, that the judgment of the Parish Court be affirmed, with costs.