131 So. 574 | La. | 1930
This case was decided by the Court of Appeal, and is reported in 129 So. 244. The decision, though reported, is not final, but is pending on application for a rehearing.
We are now asked by the Court of Appeal to instruct them how to decide the case, because in his application for a rehearing the defendant claims that the Court of Appeal erred in not giving proper effect to the decision of this court in the case of Hart v. Polizzotto,
In that case we decided that defendant was entitled to retain possession of four mortgage notes aggregating $7,000 given in pledge to the Iberville Bank Trust Company to secure a joint and several note for a like amount of $7,000, on which note the plaintiff was primarily and the defendant only secondarily liable. We found that defendant had paid the last-mentioned note with his own money, and that "the effect of this payment, which was with defendant's own money, was to subrogate defendant to the mortgage notes given as collateral." See R.C.C. art. 2160.
We then apportioned the costs two-thirds to plaintiff and one-third to defendant.
Thereafter defendant's proportion of the costs was fixed at $516.78; but defendant pleaded in compensation the $7,000 note which he paid to the bank.
He was therefore subrogated to the rights of the holder thereof. R.C.C. art. 2161 (3).
Our answer to the Court of Appeal is that the plea of compensation set up by the defendant is well founded and should have been sustained.