
    Williams v. Morancy et al.
    Where mortgaged property is in possession of the mortgagor, one expressly subrogated to the rights of the mortgagee, may proceed against it vid executivd. But where an act of mortgage contains no clause de non alienando, and the property is sold by the mortgagor to a third person, neither the mortgagee, nor any one subrogated to his rights, can proceed against it by order of seizure and sale. The creditor, must resort to an hypothecary action.
    
      Where an act transferring the rights of a mortgagee and subrogating the purchaser thereto has been lost, proof of jts contents oaji .only, bo received apon showing a previous advertisement of t}ie loss, and that prop.er measures bad been taken to re,cover it. 0. C. 2258, 2259.
    APPEAL from the District Court of Madison, Curry, J.
    
      Dunlap, Stacy and Sparrow, for the appellant.
    No council appeared for the defendants.
   The judgment of the court was pronounced by

King, J.

Williams and McMurtry executed a mortgage in favor of Moran? cy, to secure the payment of a promissory note of which they were the joint and several makers. Upon this mortgage Morancy obtained an order of seizure and sale, but desisted from executing it at the instance of Williams, who paid the greater part of the debt. Mrs. Chaille purchased the mortgaged property, and assumed the payment of the debt to Morancy. After her death, Stanford, her administrator, paid the balance romaining due, by a draft upon Britton 4‘ Cb., of which firm Koonis was a member; and, at the request of Stanford, Morancy transferred the note of Koonts, and subrogated the latter, as is alleged, to his rights under the judgment in the executory proceeding. The attorney of Koonts issued an execution on the order of the seizure and sale obtained by Morancy, and in the name of Morancy, for the whole amount of the original debt, which Williams has instituted this action to enjoin. The injunction was perpetuated for the amount paid by Williams, but dissolved for the amount paid by Stanford by the draft upon Britton 4* Co. From this judgment the plaintiff has appealed.

Interrogatories were propounded to Morancy, who in answer to them states that, the entire debt to him has been paid, with the exception of the costs incurred in the executory proceeding, and that he neither ordered nor authorized the issuing of the execution.

The question presented is, whether Koonis, in virtue of his alleged subrogation, could legally proceed to execute, in the name .of Morancy, the order of seizure .and salo obtained by the latter, to enforce the payment of the balance remaining due. This right could have been exercised while the property remained in the mortgagor’s possession, upon showing an express subrogation. -3 Rob. Rep. 3. But, in the present instance, after the order of seizure and sale was obtained by Morancy, but previous to the alleged transfer and subrogation, the laud subject to the mortgage was sold to Mrs. Chaille, and belonged to her succession at the date of the transfer. The act of mortgage contained no clause of non-alienation. Moranty himself could not have proceeded to execute his suit, after the sale to Mrs. Chaille, but would have been driven to his hypothecary .action. Koonis acquired no greater right than Morancy possessed, and consequently could not have proceeded by the executory process, even if he had made proof of an express subrogation to the mortgagee’s rights. But the proof of the subrogation is defective. Amoneit, the attorney of Koonts, deposes that Mor.qmcy transferred the judgment to Koonis, with a subrogation to all his rights in relation to it, for the unpaid residue; that the witness has searched for the transfer, -but has heen unable to find it. The foundation of the right ,p.f Koonis to proceed, even if tho property wepe still in the possession of the mortgagor, was the act o,f transfer and subrogation, which being lost, pr.o.of of its contents could .only have been made upon showing a previous advertisement of the loss, and proper measures taken to recover it. C. C. 2258, 2259.

But-it further appears that, the claim of Koonis has bsen prosecuted in the P.ro.bato Cou.rt agaiiist the succession of Mrs. Chaille, to which the land b.Bv longed, and that the land has been actually sold under those proceedings. It has not been explained upon what principle the party claims to subject the property a second time to the same mortgage.

The judgment of the District Court is, therefore, reversed. It is further ordered that the injunction issued in this casejxe maintained, without prejudice to any rights that O. W. ICoonts may have acquired under his subrogation to the rights of Morancy ; the appellee paying the posts of both courts.  