On Application fob Rehearing.
Miller, J.It is insisted on the argument for. the rehearing that under our law there is no legal subrogation in favor of the ordinary creditor who pays the mortgage creditor of the common debtor. The eases cited, that the stranger, i. e., not bound, or with no intent in discharging the debt, acquires no right of the creditor by paying it, are familiar. Curtis vs. Kitchen, 8 Martin, 708; Chalmers vs. Stow, 3 N. S. 310; Nolte vs. Their Creditors, 6 N. S. 175; Nicholls vs. His Creditors, 9 Rob. 476; Shaw vs. Grant, 13 An. 52, and others of similar type. It may be that in some of these cases the party making the payment was an ordinary creditor of the debtor. But it is quite certain that in none was the subrogation contended for on the ground that the party claiming the subrogation was a creditor of the debtor. The only case in which we find discussed the right of the ordinary creditor to the mortgage of the creditor, whose debt the ordinary creditor discharges, is that in 42 An., where the right was conceded, but denied, on the ground peculiar to that case stated in the opinion. So much for the aid afforded by our jurisprudence.
While there is some variance in the French authorities on this question, it must be conceded, we think, that the subrogation of the *188ordinary creditor, acquired by his payment of the mortgage creditor, is put beyond controversy. The theory of this subrogation is, that the creditor of inferior rank, in making the payment to the mortgnge creditor, has an interest in the property of the common debtor, the pledge of both creditors. Until the superior mortgage debt is diacharged, the creditor of inferior rank gets nothing. He is concerned, therefore, in making that payment of the superior debt which prevents a sacrifice of the common pledge, and affords the creditor who makes the payment the opportunity to make the property bring enough to pay and leave a surplus after the superior debt is satisfied. The whole reasoning on which this legal subrogation rests, points to the ordinary creditor as entitled to it, and excludes the contention that the legal subrogation is restricted to the second or third mortgage creditor who pays the debt secured by the elder mortgage. The reason of the subrogation in favor of the creditor whose mortgage is inferior exists, we think, with equal if not greater force in favor of the ordinary creditor whose payment stops the sacrifice of the property under the writ of the superior creditor. In Boileux, Toullier, Marcadé and others of the French commentators, we find the most emphatic recognition of this subrogation of the ordinary creditors. In Dalloz Codes Annotés, the first paragraph that strikes the eye in connection with Art. 1251 of the Napoleon Code, corresponding with that of our Code 2160 on the subject, is the affirmauce of the legal subrogation arising from the payment of the mortgage debt by the ordinary creditor. After all, on this question, is not the Code itself enough? Its conciseness of expression that subrogation takes place in favor of the creditor who pays another whose debt is preferable by reason of his privilege or mortgage, would certainly seem to preclude any aid for interpretation. We think reason and authority, as well as the text of the Code, sustains our opinion that gives the bank in this case, the creditor of Zeigler, the subrogation to that mortgage securing the debt the bank discharged. Napoleon Code, Art. 1251; 4th Boilleux) p. 544; Marcadé, p. 585; Civil Code, Art. 2160; 1st Dalloz Les Codes Annotés, p. 1070, paragraphs Nos. 5 et seq.
It is, however, claimed that with all the facts spread before us in this record, conferring on the bank this legal subrogation, the bank is to be denied the right, because in its opposition the bank claimed ownership by purchase of the notes, and hence can not claim own*189ership by subrogation. Payment to the mortgage creditor is the incident both of purchase and subrogation. The accounts of the bank with Zeigler wese the subject of examination by both parties in the lower court, and that the bank was Zeigler’s creditor when it paid the mortgage debt was proved and conceded. In the development of this proof and the payment by the bank, its legal subrogation, if our view of the law is correct, is conclusively shown and is patent on this record. Oan we deny the legal subrogation because the bank calls it a purchase? We have knowledge that it has been held that a party claiming ownership and failing in that contention, can not contend for a privileged debt. Such relief would be ultra petitum. We are apprised, too, that it has been held that on a rehearing the party can not ask recognition of a title not contended for before, and in one of the cases actually repudiated in the original argument. Nugent vs. Buisson, 35 An. 108; Silbernagel & Co. vs. Baker, 23 An. 699; Weil vs. Ginnery Co., 42 An. 492. We find in this case no such difficulties as presented themselves in the cases cited. The bank proved all the facts requisite for the subrogation, claimed it on the original argument, and it was allowed on our original opinion. Our courts have never been inclined to deprive the litigant of rights, because in supporting the title he asserts, there is some variance between the method of acquisition alleged and that proved, the proof tending to sustain the substantial issue, i. e., title, and conforming with and not exceeding the demand. It is true, in this class of eases, or in some of them, at least, the fact of no objection interposed to the testimony has had its .influence. In this case no objection on the ground of variance was made. But irrespective of that, in our view, when the testimony adduced to sustain the title alleged exhibits only the variance from that alleged as to the mode of acquiring title, we must give effect to the testimony. Bryan and Wife vs. Heirs of Moore, 11 M. 26; Langline and Wife vs. Broussard, 12 Martin, 242; Powell vs. Aiken & Gwinn, 18 La. 328; Nichols vs. Morgan, 9 An. 534.
Our re-examination of this case, however, leads to the conclusion that Zeigler is entitled to the credit of five hundred and fifty-three dollars and five cents, of date the 2d March, 1892. The credit accrued after the notes were given, and we can perceive no reason why it should not be allowed.
It is therefore ordered, adjudged and decreed that our former *190judgment remain undisturbed, with this modification, that Zeigler be and he is hereby allowed a credit on the mortgage notes, the subject of opponent’s opposition, of five hundred and fifty-three dollars and five cents, of date the 2d March, 1892, with interest from that date.