We are of opinion there is no subrogation to Lalande's judgment and mortgage in favor of Sheafe, as.against Gardner's heirs.
Wilson purchased of Gardner a tract of land on which Lalande had a mortgage resulting from the registry of a judgment against Gardner.
In part payment of the price, Wilson undertook to discharge Lalande’s mortgage, and for that purpose furnished a draft, in favor of Lalande, on Sheafe, at *295ninety days’ date, (due 3d April, 1848,) which draft was received by the vendor as cash.
Sheafe paid the draft at maturity; hut before paying it, called on the payee and holder, Lalande, to know whether, as a condition of the payment, Lalande would transfer to him (Sheafe) his judgment against Gardner, being the same judgment, the registry of which created the mortgage which the draft was given to satisfy.
A month after the maturity and payment of the draft, a written transfer and subrogation was made by Lalande to Sheafe.
Some stress seems to be laid upon the assumed fact that an agreement for a subrogation was made by the parties previous to the payment. But we regard that as immaterial.. The Code requires (Article 2156) that an actual subrogation should be expressed and made at the same time as the payment. It cannot be made in anticipation of the payment, for the payment is the essential basis of the subrogation. The same obligation cannot exist in favor of two distinct parties, each to the exclusion of the other, at the samb time. Neither can a subro-gation be validly made after the payment. Toullier says (vol. 7, No. 116): “Des l’instant oü le paiement est fait, le créancier est sans pouvoir pour trans-mettre ou céder des droits qu’il n’a plus. Le moindre intervalle entre le paiement et la subrogation la rend nulle et sans effet; car il ne peut plus ceder des droits qui n’existent plus.”
If we look at Lalande's deposition we find that he says: “Before paying it Sheafe called on me to know whether, as a condition of the payment by him, I would transfer to him the judgment above mentioned.” This appears to be substantially all the evidence of the assumed previous agreement; and we do not regard it as evidence of an agreement to subrogate to a mortgage against the property sold by Gardner to Wilson. It is in terms an agreement to transfer a judgment. Now the Article 2156 not only requires that the subrogation should be made at the time of payment, but that it should be expressed, not inferred from an agreement to transfer or deliver the credit or title in satisfaction of which the payment is made. Compare these expressions with those proved in Harrison v. Bisland, 5 Rob., and we think the doctrine of that case will be conclusive of this. The agreement in terms to transfer the mortgage has a later date than the payment.
It is, therefore, adjudged and decreed, that the judgment of the District Court be reversed; that the opposition of Mrs. Gardner, tutrix of her minor children, and administratrix, and of Glendy Burke & Co., be maintained; and that the account of administration of the estate of John N. Wilson be amended by placing thereon the said opponents, with privilege of vendor, and first mortgage upon the proceeds of sale of the Manehac land, the costs of the opposition and of the appeal to be borne by the appellee.