
    Armor, Executrix v. Amis.
    Plaintiff obtained a judgment on one of a series of notes, given to his testator for the price of land and scoured by mortgage thereon, and defendant became the surety of the debtor in an appeal bond. The judgment was affirmed on the appeal. Pending this appeal proceedings were had by the holder of another of the series of notes, which had been negotiated by the executor, with his endorsmeent, and judgment was rendered therein, on his consent, under which the land was adjudicated to the holder of the second note. Plaintiff having subsequently attempted to execute his order of seizure and sale it was enjoined by the purchaser, and the injunction perpetuated. In an action by plaintiff against the surety on the appeal bond: Held, that defendant, if bound on his appeal bond, would be entitled on paying it to a /subrogation to the rights of the creditor; and that the judgment bv wlácli the mortgage rights of the plaintiff were extinguished,- which rights she contends that the appeal bond was given to secure, having been rendered by her consent,the surety is released.
    from the District Court of Madison, Selby, J.
    
      Thomas and Snyder, for the plaintiff.
    
      Amonett, Stockton and Steel, for the defendant.
   The judgment of the court (Rost, J. absent,) was pronounced by

Edstis, C. J.

The plaintiff recovered a judgment against Amis, as surety on an appeal bond in which Downes was principal. From this judgment Amis has appealed.

The plaintiff had obtained an order of seizure and sale upon one of severa? notes given by Downes to the plaintiff’s testator, which were secured by mortgage on a plantation and slaves. From the. decree ordering the seizure and sals Doiones took an appeal, and gave Amis as surety on the appeal bond. The condition of the bond was that the appellant should prosecute his appeal and satisfy whatever judgment might be rendered against him, or that the same should be satisfied by the proceeds of the sale of his estate, real or personal, if he be cast on his appeal; otherwise that the surety shall be liable in his place. On the appeal the decree of the district judge was affirmed. 2 An. 243. Pending the appeal, certain proceedings were had on another of the mortgage notes given by Downes to the testator Armor, and which he had negotiated with his endorsement, by which the property subject to the order of seizure was adjudicated to a third person. When the order of seizure and salo in favor of tire plaintiff was attempted to be executed, this party enjoined proceedings under it, setting up title in the property free from all mortgage. This cause was also' before this court, in February, 1848 (3 An. 247), and on being remanded the injunction was made perpetual.

The purchaser of tire property, who had thus cut out the plaintiff’s mortgage, was also the holder of the note under which the sale was made, on which note Armor, the testator, was the endorser, and hence the plaintiff had a direct interest in having the note paid. Had the sale been set aside, the note must be ¡raid from some other source than from the property which it was mortgaged to secure. We find accordingly that the judgment by which the mortgage lights of the plaintiff, which she contends the appeal bond was given by the defendant to secure, have been extinguished, was rendered on her consent. This judgment can give her no rights against the defendant, as the case is presented to us. The defendant, if bound on his appeal bond, on paying th'o debt, had a right to the subrogation to the rights of the creditor.. If it was tho plaintiff’s interest to lift-pair those rights, and she has had the benefit of them in saving the succession ftf her husband from the responsibility of his endorsement, there is no foundation whatever for any demand against the surety1,’ to whom they would belong in the event of recovery against him:

The judgment of the District Court is, therefore, reversed, and judgment retí-* dered for the defendant, with costs in both courts.  