On Rehearing. At the original hearing the fact was overlooked that, of the sum of $3,166.81 of Mrs. West's purchases, the sum of $1,056.67 was paid by her to Holman's agent, the Todd-Worsham Auction Company, and of this the latter claims as commission 15 per cent. of the purchase price, or $475.02.
Such may be the fact as between the auction company and Holman, but the former has no superior claim to commission over the equities of complainant. We are of opinion that the entire sum of $1,056.67, paid by complainant to Todd-Worsham Auction Company, be paid by them into the registry of the court, and that the same is available and be used with the balance of complainant's payments on her purchases, and others she may have advanced and required in the payment in full of the Federal Land Bank mortgage. In that event, complainant will be subrogated to the superior title, interest, and lien on all the lands for the sums she pays above or beyond the amount of her said purchases.
The trial court should require the sale of such other lands for the satisfaction of this excess sum, if and when paid by her to the land bank.
Moreover, an alternative relief may be awarded, if so advised after full hearing with all the parties in interest before the court, to require that all purchase money available be applied as payment pro tanto, on the mortgage of the Federal Land Bank of New Orleans, with appropriate direction that the remaining lands included in the mortgage be sold, either by the court or by the mortgagee at its option, for payment of any balance that may be due on the mortgage debt, and, in the event that sufficient net moneys are not re-received thereby for satisfaction of the mortgage indebtedness, then for the mortgagee to proceed for such balance due on the mortgage, *Page 118 against the lands purchased at said sale by appellant-complainant.
In either case, the Todd-Worsham Auction Company should be required to pay into court the $1,056.67 given them as Holman's selling agent, to be available in payment on or purchase of the Federal Land Bank's mortgage. That is, that after full hearing a decree under either alternative would protect complainant's equitable rights, and maintain the superior legal rights of the Federal Land Bank through its first mortgage on all of the lands.
The attorney for the Federal Land Bank of New Orleans files brief as amicus curiæ, and therein says they are advised that the bank will be agreeable to any settlement of the equities of the parties in the premises, if and when its mortgage debt is paid in full.
The case should be retried with all the parties at interest, including the Federal Land Bank, before the court. The former order is modified pursuant to the above, and the cause is reversed and remanded.
ANDERSON, C. J., and SAYRE and BROWN, JJ., concur.