
    Scott and Dunbar v. Featherston and Amis.
    Where A. soils a plantation to B., who assumes to pay certain debts due by A. and gives a mortgage upon the property purchased, the mortgage is binding upon B. without any acceptance on the part of the creditors of A., so long as another arrangement between A. and B. be not made.
    The surety who has paid a debt, for which the creditor subsequently to the creation of the obligation took a mortgage upon the property of the principal debtor, is entitled by subrogation to the mortgage rights of the creditor. The payment by the surety is the purchase of the rights of the creditor, such as they exist at the date of the payment.
    In a sale upon a first mortgage the purchaser holds the balance of the price subject to the subsequent mortgage.
    A sale under a concurrent mortgage does not extinguish the other concurrent mortgages. The sheriff has no right to receive the amount due on them, but only the pro rata share coming to the seizing creditor, leaving the balance in the hands of purchaser subject to the other concurrent mortgages.
    The knowledge which purchasers may have of the danger of eviction does not deprive them of claiming the return of the price after the eviction does take place.
    APPEAL from the District Court of Madison, Farrar, J.
    
      Stacy and Sparrow, for plaintiffs,
    contended: Scott and Dunbar were the sureties of Thompson L. King on two notes, one upon each, held by the Commercial Bank of Natchez. The bank sued and obtained judgment both against the principal, King, and the sureties, in 1842, which judgments were paid by the sureties.
    On the 15th June, 1839, Hunter and T• L. King sold a plantation and slaves in Madison to Augustus King. The stipulated consideration to be paid for the properly was the assumpsit by the purchaser of the debts of Hunter and King, to the amount of $44,800, and a balance over of $50,000 to be paid to the vendors ; the whole secured by a special mortgage retained upon the property; that seeming the payment of their debts having a priority of rank. Among the debts so secured, is in the act of sale declared one in favor of the Commercial Bank for $5500. The sureties claim the benefit of this mortgage on the property, and to be subrogated to the rights of the bank in relation to it.
    On the 13th March, 1841, this same property was sold under executions at the suits of Ballard, Franklin Sf Co. v. Hunter and King, and Lambeth and Thompson v. Hunter and King and Augustus King, to L. A. Collier, for $32,515 cash, subject to all the mortgages resting upon the property, as shown by the certificate of mortgages. Upon the price of this sale, Collier paid the amount of the two executions under which the property was sold, viz : $11,482 45, leaving a balance unpaid of $21,042 85 to be applied to the extinction of the subsequent mortgages. The above amount ($11,482 15) is all that has ever been paid upon Collier’s purchase upon the mortgages resting upon the property at the date of the sale. Notwithstanding the array of mortgages contained in the certificate of the parish judge; yet it is admitted in the written agreement that the following were the only first valid and binding mortgages on the property, viz: Ballard, Franklin Co., first mortgage, $9951 05; Lambeth and Thompson, June 5th, 1849, $4531 10; Planter’s Bank, June 5th, 1849, $9500; Commercial Bank, June 5th, 1849, $5500. Total $26,482 15; which did not absorb the price paid by Collier.
    
    By this agreement it is admitted, that the consideration of two notes in favor of Martin upon which judgment was obtained, entirely failed; that the notes and judgment were null and void; consequently the mortgage resulting from the recording of the judgment was void. All the other mortgages were subsequent to the date of the above. The proceeds of the sheriff’s sale should have been distributed thus: First, to paying the Ballard, Franklin 8f Co. mortgage, and next, the other three named, or dividing the balance of the money between them pro rata.
    
    Ou the 10th of February, 1842, Collier executed a special mortgage on this same property, in favor of Lambeth and Thompson for $10,250. This mortgage was transferred to E. C. Millcie, who took out an order of seizure and sale upon it, under which the property was sold and purchased by the defendants for $25,866 66. The balance then due on the mortgage was $5000, with 10 per cent interest from 15th February, 1842-
    Defendants, in their brief, have urged various objections whythe plaintiffs cannot avail themselves of the mortgage established on the property in favor of the Commercial Bank. These objections will be answered in the order they are made. 1st. It is not true that the sale under the oldest mortgage, that of Ballard, Fran7din &f Co., .extinguished all the subsequent mortgages, if the property brought more than sufficient to satisfy the mortgage under which it was sold. The purchaser would hold in his hands the balance of the price, to be paid over to the subsequent mortgagees according to their rank and privilege. C. P. 706, 708, 709. 3 L. R. 212. C. P. 718. Pepper v. Dunlap, 16 L. R. 170. The case referred to by the defendants in their brief, 9 L. R. 14, was that of a probate sale, and correctly decided.
    Neither is it true, the sale under-fhe mortgage held by Lambeth and Thompson — that created by Augustus King^-extinguished the other mortgages created by him in the same act and at the same date.-. No proceedings had been instituted upon these other mortgages ; and of course the mortgagees could not enforce the payment of the amounts due them. If the whole property had brought sufficient to satisfy not only the oldest mortgage, but also the whole amount secured by the mortgages created by Augustus King in favor of the creditors of Hunter and King, then the sheriff should have received from the purchaser, and paid over to Lambeth and Thompson the full amount of their debt. If the property did not sell for enough to satisfy all these mortgages of the same rank and grade, then the balance over .the amount of the first mortgage should have been divided pro rata among those of the second rank, and the sheriff should only have collected from the purchaser and paid over to Lambeth and Thompson this share; and the portion coming to the other mortgage creditors would remain in the hands of the purchaser subject to their call. 16 L. R. 170, and other authorities.
    Now, the only mortgage older than those created the 5th of June, 1839, by Augustus King, is that stated in the certificate of mortgages under Nos. 1 and 2, they being the same one. By this agreement the judicial mortgage in favor of Martin is admitted to be y,oid. All the other mortgages mentioned in the certificate are subsequent to the 5th June, 1839. Of the debts secured by the mortgage of Augustus King, that in favor of Martin did not exist; and as to that the mortgage was void and inured to the benefit of the other creditors of jjunier an(j King. That in favor of Briggs, Lacoste 8f Co., transferred to Ballard, Franklin Sf Co., and that to David Holstein, transferred to Lambeth and Thompson, were both paid by the sale under execution; still leaving an amount of the price unpaid in the hands of Collier of over $21,000, to be applied to the satisfaction of the mortgages held by the Commercial and Planters’ Bank— mortgages of the same rank as that held by Lambeth and Thompson. No part of this amount has been ever paid, and the object of this suit is that the plaintiffs recover their portion of it. Had the purchaser at sheriff’s sale been willing to have paid the whole amount of his bid into the hands of the sheriff, the latter would have had no authority to receive it. His receipt of the money would not have been binding upon the other mortgage creditors, nor have authorised the recorder to cancel their mortgages; and if he had done so upon this evidence the erasure would have been null. The sheriff can only legally receive money and give valid acquittances for it when the payment of it is required by the process he has in his hands. This alone gives him his authority. But in this case it is not pretended that a cent has ever been paid to any person, except the amount of the two executions under which the property was sold; so that, in fact, there have never been any proceeds to distribuí e. 6 L. R. 454. 16 L. R. 170.
    2. The first, part of defendants’ second objection is certainly original, unique and amusing, viz: that defendants purchased under a mortgage executed on the property by Collier; that their purchase was for the price of $24,866 66; that they paid on the price $6000, (the amount of the mortgage executed on the property by Collier,) “and retained in their hands the balance of the purchase money, to be applied to the amount due by Collier on his purchase, which he had retained to be distributed between the next privileged creditors.” We quote correctly. The payment of $6000, a debt contracted by Collier, and for which he executed a mortgage on the property to Lambeth and Thompson is attempted to be pieaded as a payment upon what he owed upon his purchase of the property upon the mortgages then existing on it. This is too absurd to require further notice.
    The other portion of this objection requires to be examined in detail. It is substantially this: that since the purchase by the defendants they have been evicted of some 450 acres of the land and some dozen of the slaves, by Susan Jones. The fact is admitted; but the legal consequences sought to be deduced from it by defendants are denied. We will first examine the matter as to Collier, who purchased under execution against Hunter and King, and refer to the testimony of Mr. Bemiss, who says that the suit of Charles Jones v. Hunter and King, in which Susan Jones recovered the property, was generally known in the parish and particularly by the property holders in the neighborhood of the property in controversy. That Collier always alluded to this suit as lessening the value of the property, which rendered the title to this portion insecure; and that the conversations were had with Collier before the latter purchased the property. We next refer to an agreement between Collier and T. L. ICing, made only fifteen days previous to the purchase by the former of the property under execution, aud' especially referred to in said purchase, in which it is solemnly declared by Collier and King that the three notes of 5000 dollars each, executed by said King to fflooclhouse, had “ wholly and entirely failed,” and that tho parties hqd a good defence against them; and the parties make special stipulations for a defence if a suit should be brought upon them. The record of Charles Jones et al. v. Hunter and King, now in the Supreme Court, is by consent to bo read as if copied. By reference to this record it will be perceived that the consideration of the three above notes, which the parties declare to Ijavo failed entirely, was the undivided half of the John Jones property sold by Woodhoust to King ; of the same property sold by Briscoe to Hunter and Woodhouse, and for which they had given the notes held by Martin; the cons'doration for which the parties to this suit admit to have failed. The suit of Charles Jones et al. v Hunter and King, at the date of this agreement, had been pending for five years to the knowledge of said parties, and they admitted ;n this agroemeut the justice of it. -But what was agreed upon by Collier ? Why, notwithstanding his full and perfect knowledge of all the preceding facts, that at the sheriff’s sale then shortly to take place, ho bound himself to purchase the whole property, some 2,000 acres of land and forty or fifty slaves, and including in it the John Jones property, for which said notes were given, at price sufficient to satisfy all the claims held by him, amounting to about $50,000, and $10,000 over. Under his own agreement, with a full and perfect knowledge of all the facts, and the insecurity of the title, Collier did purchase the property; which purchase extinguished the claims held by him and made him a debtor to the heirs of Mrs. King in the sum of $10,000. He expressly and knowingly took the title, such as it might be then, with all its hazards and subject to the suit then pending against it. The title was a litigious right: merely an uncertain hope. The right alone, such as it might be, passed to Collier by the sheriff’s sale. He was entitled neither to warranty nor a deduction of price upon being evicted from the whole or any portion of the property. C. C. 2623, 3426, 2481, 2535. 5 M. R. 77. 9 R. R. —. Fuller v. Harman, 3d Ann. 250.
    The defendants’ position is precisely the same as that of Collier. They admit, in their second point, that they acquired under the sheriff’s sale simply the rights of Collier. This is true. In addition, they were well acquainted with the existence of the suit of Charles Jones. They were residents of the same parish and lived in the immediate neighborhood of the properly in dispute. Besides, the testimony of Alonzo Snyder proves that Amis had positive knowledge of the suit before they purchased. The same rules of law apply to them as to Collier. The court is well aware of their manoeuvre shortly after their purchase, to sacrifice the property of John Jones to their own benefit. See the record of Charles Jones et al. v. Hunter and King, and the decision in the case, 2d Ann. 254. Their claim for a reduction of price should be rejected. — 3d point of defendant.
    Fourth allegation, that the sale from Hunter and King to Augustus King was fraudulent, and the mortgages stipulated on the property in favor of the creditors of Hunter and King void.
    There is no proof that at the date of the sale Hunter and King were insolvent. The sale might or might not have been fraudulent and simulated between the parties. We do not pretend to decide. The stipulations of mortgage contained in the act of sale, securing the debts owed by Hunter and King, were unquestionably honest and bona fide. Under this sale the creditors of Hunter and King acquired a mortgage on the property contained in the act of sale, no matter what might be its character. If there was fraud, they are no parties to it, and have a right to enforce the contract made in their favor and for their benefit. The only objection that could possibly exist against the validity of this mortgage, is that contained in the art. 1978 of the Civil Code, viz: that it was a preference accorded in favor of creditors. Now, this mortgage, executed by the joint consent of the vendors and purchaser in favor of the creditors of the vendors, had been passed and was of record more than five years previous to the institution of this suit. The creditor’s of Hunter and King were the only persons having the capacity to attack either the sale or the mortgages stipulated in it. No suit has ever been brought to annul the sale or set aside the mortgages. This could only be done within one year from the date of the passage of the act. C. C. article 1982. 6 R. R. 150. 4 R. R. 408. 2 R. R. 280. Cammaek v. Gillespie, 3d Ann. 248. Again, no one but the creditors of Hunter and King, injured by the preference given to the creditors secured by mortgage, had a right to bring suit and avoid it. They never have brought such suit or complained of the preference given. The defendants are merely stake-holders in possession of the property, upon which exists a mortgage to secure the payment of the amount retained by Collier upon the price of his purchase. That sum is to be paid by them, or the property abandoned to be sold to pay it. The creditors might oppose the payment of the money to the plaintiffs, but it does not lie in their months to contest plaintiffs’ claims.
    As to the objection contained in defendants' fourth and seventh points, that the mortgage was not accepted by the Commercial Bank. No acceptance was necessai-y. Acts containing stipulations purely for the benefit of a third party are always presumed to be accepted. C. C. art. 1884, 1812- 2 N. S. 672. 3 N. S. 609. 2 L- R. 552. 5 R. R. 243. 5 C. R. U. S. 356. But, in point of fact the Commercial Bank did, as soon ns they were aware of its existence, accept this mortgage; notified Collier of the fact in writing and that they intended to enforce it on the property in his possession. The bank had two remedies: one against the mortgaged property, and the other against the sureties of Hunter and King. They chose to pursue the sureties,which they did, and made the debt out of them.
    But the defendant’s point fifth: That the notes of Hnnler and King were prescribed before the institution of this suit, more than five years having elapsed since the assumpsit and mortgage of Augustus King. The answer to this is, that those notes were, in 1842, merged in the judgments against King and the plaintiffs. These judgments then became the evidence of the debts assumed by Augustus King, and were paid by the plaintiffs. Prescription against the sureties paying, only commenced to run from the date of their payment, and then the prescription of ten years only would apply. It run neither against the notes nor the judgments, but against plaintiffs’ right to be paid under the assumpsit of King, and to avail themselves of the mortgage executed by him.
    Sixth. It is shown by E. B. Fuller, teller of the Commercial Bank of Natchez, that the notes upon which the judgment was obtained were held by that bank at the date of the assumpsit and mortgage; and that Hunter and King’s indebtedness at that date to the Commercial Bank of Natchez then slightly exceeded in principal and interest the amount of the assumpsit, $5,500. The identity of the bank in favor of which the assumpsit was intended to be made and the mortgage executed, is sufficiently shown, as it is not proven that Hunter and King were indebted to any other “Commercial Bank.” In certum est, quod certum reddi potest.
    The precise amount secured by mortgage and assumed is fixed at $5,500, and declared in the act.
    It is admitted that the legal interest of the State of Mississippi was eight per cent up to February, 1842. This debt, then, to the amount assumed, $5,500, at the date of the assumpsit, was bearing eight per cent interest — it being due —was assumed with the incidents attached to it, and the interest as well as the principal entered into it. In other words, the debt was assumed in the state and condition it then was, and the assuming interest was protected by Lhe mortgage.
    Seventh. Defendants deny, that although the Commercial Bank might have been entitled to the benefit of the mortgage executed by King, yet that the sureties of Hunter and King did not, by paying their debts, become subrogated to the rights of mortgage held by the bank.
    The Code, art. 2157, says that subrogation takes place of right, for the benefit of him who, being bound with others or for others for the payment of the debt, had an interest in discharging it. This subrogation is to the rights of the creditor who has been paid by the parly thus bound. C. C. p. 2155, arts. 3021, 3022, provide that the security has the same right of action and the same privilege of subrogation which the law grants to joint co-debtors. What were the rights of the Commercial Bank, at the date of their judgments and the payment of their debts by the sureties, against the principals Hunter and King, and Scott and Dunbar, their sureties. 1st. To enforce payment against both principals and sureties personally. 2d. To avail themselves of the benefit of, and to enforce, all the mortgages executed, or other securities acquired in their favor by either, to secure the payment of the debt. The legal subrogation often when it takes place is as extensive as the conventional can be. They both include all the rights, actions, privileges and mortgages held by the creditor against the debtor. C. C. 2156. Here a legal subrogation covers everything to which the creditor could subrogate the sureties against the debtor, upon payment by the former. Pothier on Obligations, No 522. The payment made by the surety does not extinguish the debt, but is considered as a sale, to the party paying it, of all the rights and actions of the creditor. The cases of Old v. Chambliss, 3d Ann. 206; Tarder v. Allen, do. 66, and Trente. Calderwood, 2d Ann. 942, do not militate against the above principles, but support them. The execution of a twelve months’ bond is a new contract; the judgment is merged in it; there is no privity between the original creditor and the surely on the bond; but, should the debtor, who had executed the bond, have subsequently given a mortgage to the creditor to secure its payment, and the bond been paid, by the surety, there can be no doubt that he would be legally subrogated to all the rights of mortgage of the creditor. The subrogation would then take place in favor of the surety “originally bound by the contract,” and he could avail himself of the mortgage.
    The complaint that the interest has been compounded is unfounded. Art.-3021 provides, that the security who has paid the debt has his remedy for the principal, interests and costs which he has been sentenced to pay; and by art. 1936 the surety who is obliged to pay money for his principal, shall receive interest on the whole sum he has paid, whether for principal or interest, from the time of payment.
    As to the complaint that the mortgage in favor of plaintiffs is recognised on the slnves Annie.a, Ann and Clara or Clarissa, it will be seen that none of these slaves were recovered by Susanna Jones. And that the name of only one, 
      Annica, occurs in the admission of the sale from Susan Jones to Junius Amis, and that the slave America, who was recovered, is not included in the sale to Amis. This is merely a clerical error of Anna, for America, who was recovered but not included in the act of sale; and as Anna was not recovered as a part of the Jones property, the mortgage rests on her.
    
      J. Thomas, for defendants,
    contended: 1st. The plaintiffs have no mortgage. The assumpsit of Roe is wanting in that certainty which in a mortgage can affect third persons. “Also to the Commercial Bank the sum of $5500.” In the same act where notes and bills had been given they are mentioned as such. C. C. 3277. 9 R. R. 485.
    There was then due, the 5th of June, 1839, of the principal of the two notes said to represent the $5500 assumed, $5830 12, viz: one of $3983 29, and one of $3421 69, subject to a credit of $1574 86. Of this, King paid on the 8th of June, 1839, $250, and the petition apportions the amount to which the two notes are supposed to be entitled, thus: to Dunbar, $3125; to Scott, $2375, making $5500,
    2d. The bank never accepted the provision, if any made for it, now claimed by the plaintiffs as subrogees under it; nor did the plaintiffs in any manner recognise it as a security for their debts until after the purchase by Collier and defendants, and until five years after its date, and after they had paid. Zacharie v. Obiarm et al., 6 L. R. 402.
    3d. The security now claimed did not grow out of the contract of the plaintiffs. The bank did not accept it, consequently could not delegate it, or the plaintiffs be subrogated by payment. 2d Ann. 942. 3d Ann. 205. L. C. 2157, sec. 3, 3022, 3030.
    4th. The conveyance by Hunter and King to Roe was fraudulent, and any one affected by the mortgage reserved may complain.
    5th. The mortgage claimed, if one ever existed, and the plaintiffs were subrogated to the rights of the bank under it, was cut off by the sale to Collier in March, 1841, who bought under one older, and one concurrent with it.
    This sale left a surplus to be applied to other liens; and to that surplus the plaintiffs, if they have any right, must look. The sale was for cash. Consequently the surplus was legally in the hands of the sheriff; and if he permitted Collier to retain it, his was the fault, and upon him rests the loss.
    6th. Collier mortgaged to Lambeth and Thompson; Milkie put it in judgment ; and under it the defendants bought.
    This purchase left a surplus in their hands, which is more than covered by the loss of the Jones property, and that sold under the Muir and Moore judgment.
    7th. The property having been sold under one mortgage older, and one concurrent with that claimed by the plaintiffs, and those mortgages paid by the purchaser, defendants’ vendor, and there existing other concurrent and prior liens to that claimed by the plaintiffs, the judgment should fif the plaintiffs have any rights) have ordered the sale of the whole property, the proceeds to be brought into court, and distributed in concurso. This form of judgment has a precedent in the case of Chien v. Roe, 2d Ann. 492,
    In that concurso the defendants would be entitled as representing Collier their vendor to the rank, which the mortgages paid by him held in reference to the other liens. He and they would be, as it were, subrogees to themselves, thus abandoning the property and preserving their liens. Millauclon v. Allard, 2 L. R. 551.
    The judgment as it stands, whatever the rights of the plaintiffs, is an outrage upon justice and law. The property is, as shown by the two sales, and the portion of it lost, wholly insufficient to pay the plaintiff’s demand, and leave anything to reimburse the payments made on it at judicial sale, without taking into account other concurrent and prior liens; thus giving an undue advantage to the tardy. And a decree may be so rendered under the pleadings and prayer of the defendants and the showing made in the record.
    8th. The judgment includes three of the slaves, Annica, Anne, and Clara or Clarissa, excluded by the statement of facts, being part of the Jones negroes.
    9th. No interest should have been allowed, except from judicial demand, and that of 5 instead of 8 per cent; no time of payment being fixed by the assumpsit, and no interest agreed to be paid.
    10th. The interest was added to the principal, and interest allowed upon the aggregate. C. C. 3021.
    11th. If it is assumed that the notes constituted the basis of interest, and the position be true as to others than the makers, the demand is prescribed. Neither the mortgager nor the defendants were parties to the suits upon them; nor were they bound in solido with those against whom suit was brought. These suits, tjlen) ¿üd not interrupt or suspend prescription as to others.
   The judgment of the court was pronounced by

Rost, J.

This is an action of mortgage. There was judgment in favor of the plaintiffs, and the defendants appealed.

The material facts of the case are as follows: Scott endorsed a note for Thompson L. King. Dunbar contracted an obligation in solido with Thompson L. King and others. These two notes were discounted by the Commercial Bank of Natchez for the benefit of King. They were not paid at maturity, but shortly after they became due King sold a plantation and slaves, which he owned in common with John E. Hunter, to Augustus King, who, as the consideration of the sale, assumed to pay debts of the vendors amounting to $44,500, and gave them his notes on long terms of credit for the further sum of $50,000. The vendors retained a mortgage in their own name to secure the payment of the whole consideration, with the express agreement that the debts assumed should be secured thereby by priority and preference over the remainder of the price, in the same manner as if they were secured by a mortgage of prior date. Among the debts thus assumed was a sum of $5500 which the purchaser bound himself to pay to the Commercial Bank on the notes of Thompson L. King.

Augustus King having paid none of the debts assumed by him, the property was seized under one mortgage older, and one concurrent with that claimed by the plaintiffs, and it was adjudged to Lewis A. Collier for $32,515. He paid the two seizing creditors $11,482 45, and retained in his hands the balance of the price to be applied to the unpaid mortgages.

The property was subsequently seized and sold at the suit of the creditors of Collier, when it came to the possession of the defendants. After the sale to Collier, the Commercial Bank of Natchez notified him that they intended to avail themselves of the stipulation made by Augustus King in their favor, and to enforce the mortgage given by him.

The bank in the meantime brought suit on the two notes against the plaintiffs and obtained against them judgments which they have since paid. They allege that by this payment they have become subrogated to all the rights of action of the bank, and more particulai-ly to the mortgage given by Augustus King. They pray that the defendants be adjndged to pay them the balance due on the notes of Thompson L. King, with interest at the rate of 8 per cent per annum according to the laws of the State of Mississippi, or that in default thereof, the property mortgaged be seized and sold to satisfy their claim.

The defence is, that the bank has no mortgage, and that it never accepted the provision, if any, made for it. That the security now claimed did not grow out of the contract of the plaintiffs, and they could not be subrogated to it by payment. That the conveyance to Augustus King was fraudulent. That the mortgage claimed, if one ever existed, was cut off by the sale to Collier. That the judgment included three of the slaves which were excluded by the statement of facts. That no interest should have been allowed, except legal interest from the judicial demand. That in the judgment, interest has been added to the principal, and then allowed upon the aggregate, in violation of art. 3021 C. C. That if it "is assumed that the notes constitute the basis of interest, and the position be true as to others than the makers, the demand is prescribed. That since the purchase of Collier and their own, they have been evicted of a large portion of the property purchased by them, and that they are entitled to a reduction on the price agreed to be paid by Collier, they being subrogated to his right.

A mortgage is clearly retained by the vendors to secure the payment of $5500 to the Commercial Bank. The evidence leaves no doubt on our minds that the bank meant was the Commercial Bank of Natchez. It accepted the provision made in its behalf after the sale to Collier, and if it had not, the provision was binding upon Augustus King and the property purchased by him, so long as another arrangement was not made between him and his vendors.

The plaintiffs were bound with Thompson L. King and for him for the payment of their notes, and had an interest in discharging them. Under art. 2157, C. C., subrogation took place of fight in their favor at the time of the payment. This subrogation covered every thing to which the creditor could subrogate the sureties against the debtor, upon payment by them. The payment made by the surety does not extinguish the debt, but is considered as a sale to the party paying it of all the rights and actions of the creditor. Pothier, on Obligations, No. 559.

Whether the sale to Augustus King was or not fraudulent between the parties, is a question into which we cannot enquire. The Commercial Bank was no party to the fraud and the mortgage stipulated in their favor cannot be affected by it. Other creditors of Thompson L. King might have objected to the preference thus given to the bank ; but the defendants have no right to do so.

We are of opinion that the mortgage was not cut off by the sale to Collier. That sale was made under one mortgage older, and one concurrent with that of the plaintiffs. The property having brought an amount more than sufficient to satisfy the older mortgage, the purchaser would hold in his hands the balance of the price subject to the subsequent mortgages, according to their rank and privilege. C. P. art. 706, 708, 709, 718. Casanova v. Aregno et al., 3 L. R. 212. Pepper v. Dunlap, 16 L. R. 170.

The sale under the concurrent mortgage did not extinguish the other mortgages created in the same act and at the same date. No proceedings had been instituted upon these other mortgages, and the sheriff had no right to receive the amount due on them under the writ he held. If the property did not sell for enough to satisfy all the mortgages of the same rank, the balance over the amount of the older mortgage should have been divided pro rata, among the mortgagees, and the sheriff should only have collected the pro rata share of the seizing creditor ; and the portion coming to the other mortgage creditors would in that case remain in the hands of the purchaser, subject to their call, and secured by their mortgages. Pepper v. Dunlap, already cited.

The slaves Anne, Clara or Clarissa and Annica form no part of those recovered from the defendants by Suzanna Jones. In her sale of the property recovered to them, the name of Annica is found; and as she had recovered one named America, who is not mentioned therein, the name of Annica was evidently inserted through error for America.

That portion of the judgment which allows interest at the rate of 8 per cent per annum is erroneous. As a general rule, a third possessor in an action of mortgage is not bound for interest not preserved by the inscription. But the defendants are not, properly speaking, third possessors. Collier, in whose place they stand, was a stakeholder to the amount remaining in his hands, after satisfying the executions under which he purchased. The amount assumed as cash by Augustus King was part of the price of the plantation and slaves, and bore legal interest from date by the operation of law. For that interest as well as for the principal a privilege existed on the property at the time of the judicial sale, and it continued to run against Collier afterwards upon that portion of the price which remained in his hands. To that interest the plaintiffs are entitled.

The plea of prescription cannot be sustained. Augustus King was primarily dable to his vendor Thompson L. King; and it is to him that he gave the mortgage in controversy. Between them the debt assumed is clearly not prescribed. The delegation by Thompson L. King did not create a novation of the debt; and so long as it is binding between the original parties to it, the recipient agreed upon by them is entitled to the benefit of it.

It is proved, that since the judicial sale to Collier and to the defendants they have been evicted from a large portion of the property. But it is urged on behalf of the plaintiff's that the suit in which the eviction took place had been pending five years at the time Collier purchased, and that he as well the defendants had a full and perfect knowledge of all the dangers of eviction at the time of their respective purchases, and are entitled neither to warranty nor to a reduction of the price. It is also to be observed, that the claim of the bank against Thompson L. King had been preserved by a judgment.

We cannot assent to these propositions. The sheriff’s sale to Collier is in the usual form, and carries with it, of course, the usual warranties of such instruments. The knowledge which purchasers have of the dangers of eviction does not deprive them of the right of the claiming the return of the price after the eviction has taken place. That right exists in all cases, unless the party evicted, knowing the danger of eviction, took the property without warranty, and at his peril and risk. C. C. 2481. C. P. 711.

The defendants, as subrogated to the rights of Collier, are entitled to a reduction of the price agreed to be paid by him. But there is nothing in the record by which we can ascertain the amount to be deducted, or whether the sum remaining will be sufficient to satisfy all the mortgages of equal rank with that of the plaintiffs.

To obviate the necessity of remanding the cause, the counsel for the defendants have suggested that the court should order the sale of the property remaining in the possession of the defendants, and the proceeds to be brought into court and distributed among the mortgage creditors; giving to the defendants, as representing Collier, their vendor, the rank which the mortgages paid by him held in reference to the others.

If the defendants had claimed, in their answer, the rescission of the entire sale under art. 2487 C. C., on account of the partial eviction suffered by them, and had made proper parties', such would undoubtedly have been the decree of this court. But the decree asked is unauthorised by their pleadings. They have purchased from Suzanna Jones the property recovered from them, and insist upon the right to retain the whole and to deduct from the price which Collier agreed to pay the consideration of this purchase. Under those circumstances we can only remand the cause for the purpose of ascertaining the relative value of the property not recovered by Suzanna Jones in relation to the whole property purchased by Collier, and the amount of mortgages of equal' rank now existing on the property. We see no objection to the division of the' amount claimed, as made by the plaintiffs.

It is thei’efore ordered, that the judgment in this case be reversed. It is further ordered, that the claim of the plaintiff Dunbar be recognised to the amount of $3125 with legal interest from the 5th June, 1839, till paid. It is further ordered, that the claim of the plaintiff Scott to the sum of $2375 with legal interest from 5th June-, 1839, till paid, be also recognised and allowed. It is further ordered, that the'case be remanded for further proceedings, with the following directions to the district judge: 1st. To ascertain the reduction to wliich the defendants are entitled on the price agreed to be paid by Collier in eonsequenee of the partial eviction suffered by them in the suit of Charles Jones et al. v. Hunter and King, Suzanna Jones intervenor. 2d. To ascertain further, the amount of the mortgages of equal rank with that of the plaintiffs now existing on the property in dispute; and to cause the holders of those mortgages to be notified of these proceedings. 3d. To distribute among those mortgage creditors the sum found to be due by the defendants, and to cause the property mortgaged to be seized and sold to satisfy it.

It is further ordered, .that the plaintiffs and appellees pay the costs of this appeal.  