
    Oakey & Hawkins v. The Sheriff et als.
    The Articles of the Code relative to payment with subrogation, do not apply to the case of an.absolute transfer of a debt which includes its accessories, such as privileges and mortgages.
    APPEAL from the District Court of East Feliciana, Ratliff, J.
    
      Bowman Sf Delee, for plaintiffs.
    
      W. F. Kernon, for defendants and appellants.
    
      T. Hardesty, for intervenor.
   Spofford, J.

This is an injunction sued out to restrain the Sheriff from paying over to one Gurney, as seizing creditor, the proceeds of the sale of certain lands belonging to McElwee, upon which the plaintiffs claimed a superior privilege by reason of a prior judicial mortgage, which had been transferred to them.

They had judgment in their favor and Gurney, who is the real defendant, has appealed.

, He contends that the injunction was too late, because the twelve months bond, representing the proceeds of McElwee’s land,-had been delivered to him.

But he has precluded himself from relying upon such a defence by the terms of his receipt for the money from IGlbourne, the obligor in the twelve months bond. He received it “ as though the same had been paid - to the Sheriff upon execution issued upon said twelve months bond.”

It is not pretended by Gurney that the judicial mortgage created by the registry of the judgment of Hardee ¡¡f Sandal against McElwee, since assigned to the plaintiffs, did not overreach his own claim upon the proceeds of the land. But he contends that said judgment was extinguished by payment, and that the plaintiffs, Oakey Hawkins, have no interest in it.

But it does not appear that this judgment was ever satisfied. The judgment creditors, on the 21st of February, 1856, in consideration of a promised acceptance of Oakey & Hawkins, payable 10th Jan. 1857, for the balance due thereon, transferred the judgment to said Oakey & Hawkins. They, upon accepting said draft, March 7th, 1856, became assignees and holders of the judgment, which could only be satisfied by McElwee paying them its full amount. He has never paid them. The clause about “ subrogation” in the transfer, may be disregarded as surplusage. The transfer of a debt includes its accessories, such as privileges, mortgages, &c. C. C. 2615.

The Articles of the Code relative to payment with subrogation, do not apply to this case.

When Oakey & Hawkins sued out their injunction, they were the lawful holders and owners of the judgment of Hardee & Sandal against McElwee, which has never been satisfied.

Their acceptance has since been paid by one Mills, a stranger to McElwee, so far as appears. Mills has a claim upon Oakey & Hawkins for money thus advanced for a debt of theirs. But Oakey & Hawkins, never having transferred it, still own the Hardee § Sandal judgment, which McElwee has never paid, and which was never extinguished.

A third opposition would have been a more prompt and proper remedy, but we are not prepared to say that the injunction is not a concurrent remedy.

Judgment affirmed.  