
    No. 12,381.
    Perkins Bros. et als. vs. Ferdinand Gumbel, Liquidator, and the Sheriff.
    The articles of the Code relative to the payment with subrogation have no reference to the purchase of promissory notes secured by mortgage. C. C., Arts, 2160, 2161; 9 Bob. 476; 13 An. 273.
    The sale of the note secured by mortgage and privilege carries as accessories the privilege and mortgage. O. C., Art. 2615, and 2 La. 576; 13 An. 273.
    A PPEAL from the Tenth Judicial District Court for the Parish of CT. Avoyelles. Lafargue, J. ad hoc.
    
    
      J. C. Cappel, Joffrion & Joffrion for Plaintiffs, Appellees.
    
      G. H. Couvillon and Saunders, Miller, Smith & Hirsch for F. Gumbel, Liquidator, Defendant, Appellant.
    Argued and submitted February 17, 1897.
    Opinion handed down March 29, 1897.
   The opinion of the court was delivered by

Miller, J.

This case was before us on a previous occasion, and was remanded to enable the plaintiff to offer testimony in reference to one of the notes on which he sued. Coco vs. Gumbel, 47 An. 966.

There is a motion to dismiss the appeal, on the ground that the decree remanding the case restricting the issue to one of the notes for one thousand and eighty dollars, the amount involved on this appeal, is insufficient to give this court jurisdiction. But the contest of the plaintiff in the lower court is with other creditors of the defendant for payment from a fund exceeding two thousand dollars, derived from the sale on execution of his property, and the amount of the fund gives this court jurisdiction. Constitution, Art. 81.

The plaintiff, P. Gumbel, liquidator, sues on three notes, made by R. Ooco, for ten hundred and eighty dollars each, maturing 1st of January, 1889, 1890 and 1891, to secure the payment of which there was the vendor’s lien and special mortgage. Plaintiff claims-to have acquired the notes by purchase from the original holder. Subsequently, the property became subject to other mortgages, and when the plaintiff sold the property under his judgment and execution, his right to the fund was disputed by the oppositions of the other creditors, on the ground that the notes had been paid, and thereby the plaintiff’s mortgage and vendor’s lien had been extinguished. Our previous judgment, on grounds unnecessary to be stated, freed the controversy from the objection that the third opposition claiming the proceeds was inconsistent with the denial of any mortgage. Our decree recognized plaintiff’s mortgage and privilege for fhe note maturing in 1891, and as the testimony produced by the opponent tended to show payment, and the note maturing in 1890 had on its back “Received January 3, 1890, from Gumbel Bros. & Meyer, without recourse,” signed by the agents of the original holder, we, at first, giving effect, as we thought, to the testimony, aided by the writing on the back of the note, held that note was paid. On the rehearing we remanded the case for proof as to plaintiff’s demand on this note, maturing in 1890. The case comes back to us with additional testimony on the point at issue.

The only testimony offered to establish the payment alleged by the opponents is that of the maker of the notes. He testifies that he' requested plaintiff to pay one of the notes, maturing January, 1889,. given with the three notes sued upon to his vendor, and it is shownl this note maturing in 1888 was paid. Along with the testimony of the witness that the notes sued upon were paid, is his answer in effect to the question of the source of his knowledge, that they were paid unless “ different from the first note.” It is plain his statement of the payment of the notes sued upon is simply his inference based on the payment by plaintiff of the first note. The witness very frankly states he has no knowledge on the subject other than that he states.

The opponents, however, insist that the transaction which plaintiff claims to have acquired was a payment. By this is meant that the plaintiff firm paid the money for the notes to the agents of the original holders. But the question is whether the money was not paid for the purchase of the notes, as plaintiff maintains. The opponents rely on the articles of the Oode that require a subrogation to the creditor’s mortgage when he receives payment from a third person, and on the line of decisious following the Code, that such payment, without subrogation, extinguishes the mortgage. Civil Code. Arts. 2160, 2161; Nicholls vs. His Creditors, 9 Rob. 476; Washburn vs. Green, 13 An. 332. The articles of the Oode, with reference to payment and subrogation, have no reference to the purchase.of notes or other incorporeal rights. The sale of the note carries the mortgage and privilege securing it. C. C., Art. 2615; Moore vs. Louaillier, 2 La. 576; Oakey & Hawkins vs. Sheriff, 13 An. 273. The plaintiffs do not claim title by payment and subrogation. They allege title by purchase. On that issue we have the writing on the back of the note, “Received from Gumbel Bros. & Mayer ” put on it by the holder when he delivered it to the plaintiff. It is consistent with the purchase, or, at least not inconsistent with it. In the light of the testimony it is to be viewed as an acknowledgment of the money received from plaintiff: We have, too, the testimony of the original holder of his impression the notes were purchased, naturally not very distinct, with reference to a transaction years ago conducted for him by an agent. We have the accounts of plaintiff’s factors of the maker, in which the notes are not charged to him, the natural course if they had been paid. The agents of the original holder from whom the notes were received are dead, but there is the positive testimony of the plaintiffs that the notes were purchased and not paid, the presumption too arising from the presentation of the notes by plaintiff. 3d Randolph on Commercial Paper, Sec. 1438. In our opinion the plaintiff has supported his title to the note the subject for examination under the previous decree.

■ We are asked to treat our decree, remanding the case as to one only of .the notes in controversy, as an error. The subject received our full consideration when the case was before us on the first appeal. On the testimony in the record we reached the conclusion our decree carried into effect.' The decree must stand.

It is therefore ordered, adjudged and decreed that the judgment of the lower court appealed from be reversed and avoided, and it is now ordered, adjudged and decreed that the oppositions be and they are hereby dismissed, claiming to be paid by preference over Ferdinand Gumbel, liquidator, out of the fund derived from the property sold by the sheriff, subject to said Gumbel’s mortgage to secure the two notes of one thousand and eighty dollars made by Ooco held by said Gumbel, maturing January 1, 1890, and 1891, and it is now ordered, adjudged and decreed that the proceeds of said property be paid by preference over said opponents to said F. Gumbel, liquidator, to the full amount of said notes, interest and costs, including five per cent, attorney’s fees.

Mr. Justice Breaux dissents.  