On Rehearing.
Breaux, J.There are different stages in this complicated litigation. We take up one of the last.
Following the rule that one who buys property at sheriff’s sale may compel all the interested parties to appear in court and contest their claims to the proceeds, the buyer filed a petition and made the creditors of the seized debtor parties to the suit and thereby created, as it were, a concurso, instituted with the view of settling the right of all parties concerned.
He averred that neither James Brice, one of the parties, nor the children of Mrs. Maggie V. Theus, deceased, ever acquired any interest in the mortgage first in rank. The mother of opponents, Mrs. Maggie Y. Theus, held interest in this property under a dation en paiement which was afterward annulled, it is true, but under the theory of our original opinion she was entitled to subrogation as claimed.
But the adjudicatee, Armistead, is pleased to contend that Brice was *433originally a debtor of Walmsley & Co. who hold the second mortgage and that, in consequence, he cannot claim preference by legal subrogation. This contention, we take it, is not sustained by the weight of the testimony and the adjudicatee, Armistead, is not in a position to sustain it, for the reason that Brice had been released from his obligation as a debtor of Walmsley & Co., if he ever has been their debtor. Walmsley’s mortgage dated from the year 1891, long prior to the legal subrogation Brice claims. If he had been a debtor, Walmsley & Co., by taking mortgage security and accepting other debtors had completely released Brice. This is stated upon the theory that Brice may have been a debtor as just stated. As to this indebtedness we must say that we are not convinced. He unquestionably paid for the note which fell due as stated in our original opinion, and we, therefore, decline to reopen the question regarding his right as a creditor.
This brings us to the claim of the children of Mrs. Maggie Y. Theus, opponents.
It had been argued in behalf of the adjudicatee before named that there was no separation of property between Mrs. Maggie Y. Theus and her late husband, and that in consequence if she bought the notes secured by mortgage on the property it fell into and became part of the community between her and her husband. True the dation en pavement made by her husband to her was annulled. This did not have the effect of annulling the separation of property and that of dissolving the community which she obtained after the dation made to her, annulled as just mentioned, even if she had not property rights against her husband. Besides the judgment of separation had legal effect until it is shown that it was illegal. It has every appearance of legality on its face. The judgment must be considered conclusive in so far as it is legal. Jones vs Morgan, 6 Ann. 632.
The wife may protect property she is about to receive if she shows that such a step is necessary because of the disordered condition of her husband’s business. Vickers vs. Block, Britton & Co., 31 Ann. 675. The right of the wife to a separation of property is not limited to Art. 2399 of the Code. She may obtain a separation of property in order to protect the return of her industry. Crockett vs. Gale, 7 Ann. 343;. Wolf vs. Clark, 10 Ann. 273. The amount made by the wife for the support of her family may find protection under judgment of separation of property, although she actually owns no claim against her *434husband. Davrock vs. Davey, 6 Rob. 344. The doctrine in Davrock vs. Davey has been reaffirmed in repeated decisions, 24 Ann. 75.
After the dation en paiement, to which we have before referred, she became the creditor of her husband. After the issues had been made up in the case of Ardis & Co. vs. Theus and Annistead, 47 Ann., but before they had become final, she, from her separate funds, bought the claims in question.
Owing to the want of care in business of her father, whose only heir she was, the amounts were handed over to the son-in-law without attention to legal form to the end of protecting her interest. She became the owner of the note payable in 1893. There was good reason for her to seek to become its owner. After she had bought that note she was beyond all question a creditor of her husband and had an absolute right as had all the other creditors to become subrogated by legal subrogation. She was not an anxious and nervous creditor, seeking to take advantage of her husband's creditor, but as a creditor, only availed herself of the right the law accords to any creditor.
The book-keeper of the late Mrs. Theus testified that he had paid the amount for' her and that the notes were afterward sent to her. Other testimony sustains the statement. To the extent that Mrs. Theus took up two of the notes, she is entitled to recovery, that is, she has a, right to the principal and interest paid by her, but not to the interest on the amount since she took up the notes, for then she would become interested in an account against her husband, a claim not sanctioned by law. The wife may acquire a. claim against her husband under circumstances justifying the transfer to her by the creditor, but the claim ceases to bear interest as it is regarding all other claims by her against him.
Before leaving this branch of the case, we insert here as controlling between the transferee and the transferror the following: The subrogation established by the proceeding articles takes place as well against the sureties as against the debtors. It cannot injure the creditor since, if he has been paid but in part, he may exercise his right for what remains due in preference to him from whom he has received a partial payment. C. C. 2162. This article sets at rest all ' question of all advantage over the creditors who transferred' their claim. As relates to the wife, or her heirs, she only recovers that which was her own in collecting a claim that would have been collected by the original creditors if the transfer had not been made.
*435This brings us to a consideration, of the validity of 'the sale of the property, an important question before us on the rehearing.
The mortgage creditors second in rank chose to foreclose without insisting upon the trial of a suit brought to have the prior mortgage erased to the extent that it had been paid and they were entitled to its erasure. The sheriff’s return states that the mortgage certificate evidenced a prior mortgage for more than the amount of the bid and that, in consequence, he declined to make a deed to the property.' The sheriff, we understand, complied with the law and announced to the bystanders that no adjudication could be made unless the bid covered the prior special mortgage. His return sets .forth that he complied with all of the law’s requirements in this respect.
The amount bid for the property did not exceed the prior special mortgages. It follows that the offer to sell made by the sheriff cannot be completed in view of the objection pleaded. The Code of Practice is general in the language used. The right to raise the objection is not limited to the mortgage creditors prior in matter of ranis of mortgage, but also includes the owner as one tp whom the right is given to object.
With reference to a similar ground as the one before us for consideration, Judge Martin, with .clearness and precision, said that such a sale was null because no price had been received by the creditor; that there could be no sale without a price. DeArmas vs. Morgan, 3 N. S. 606. This, view was subsequently affirmed in another decision in the early days of Louisiana jurisprudence. Balfour vs. Chew, 4 N. S. 162. Subsequently the question w*as discussed. The court said: “The provisions of law on this subject were designed exclusively for the interest and protection of the owner of the property and those having a real right in it growing out of the property. Whitehead vs. Cramer, 9 Ann. 218.”
The light of the owner in this regard was specially referred to in these words: “If a special mortgage or privilege certified to exist, be extinguished, or never attached, the owner or his creditors in case of a. surrender may recover the amount.” Perry vs. Holloway, 10 Rob. 107. In another case the court held that equity forbids that the buyer shall-take property without paying the price, or, on the other hand, if there is no price that then he shall have it sold for the benefit of other creditors. The defendant or special mortgagees might have caused it to be annulled. Laurence vs. Birdall, 6 Ann. 689. In the case from *436which we have just quoted exceptions are mentioned which may take a case out of the general rule. The exceptions do not apply to the case before us.
The owner’s interest that his property should not be sold at a less price than the law required is obvious. Land and Husband vs. Cameron, 36 Ann. 776.
When the creditor is to take nothing from the proceeds, he is placed in the attitude of causing the sale of his debtor’s property to no purpose in so far as he is concerned. This, the Article of the Code on the subject, in effect, lays down, cannot be done and when it occurs, the owner of the property, ordinarily, is prejudiced and can be heard. The sale is for the payment of the creditor’s claim. The language of Art. 684 does not seem to contemplate that it shall be considered as valid a'nd binding when another creditor than the seizing creditor is the one to be paid as a result of the offering at the instance of a creditor.
The nullity, it is true, is relative and not absolute. This nullity can be pronounced when all the parties in interest are before the court and the issue of nullity, vel non, comes up as in this case before the sale has been completed.
The question, as before stated, grows out of the refusal of the sheriff to give a deed and deliver the property. There is and can be, in our view, no question of damages arising from an illegal seizure or detention of the property, for the seizing creditor had the right to have the property seized and since that time it has been in gremio legist for which no one can be held responsible.
It is, therefore, ordered, adjudged, and decreed, that James Brice is recognized as a creditor for the sum which fell due in 1897, decreed in the original judgment, that is of principal on note, interest, and attorney’s fee on this note to be entitled to preference over Walmsley & Co.
It is further ordered, adjudged, and decreed, that the heirs of the late Mrs. W. P. Theus are entitled to the notes which matured in 1894 and 1895 and to interest at five per centum per annum, as stipulated from their respective dates to the date they were paid and fee of attorney. That portion of the original decree recognizing her heirs as owners and subrogees as relates to the note of 1893 is stricken out of the original decree and not allowed. The property is burdened also *437with the mortgage securing the payment of the notes which matured in 1898, 1899 and 1900.
It is further ordered, adjudged, and decreed, that the adjudication of the property to W. W. Airmistead on the fifth of January, 1899, is null and set aside.
As such the judgment heretofore handed down by us in this case is amended to conform with our present decision and decree, and as amended it is affirmed.