¶1The opinion of tjie court was delivered by
¶2The defendants having obtained a judgment against the plaintiff for the sum of $31,841.65 with interest, subject to a remittitur of $624.42, and the sheriff in enforcing it having seized certain parcels of land, with the buildings and improvements thereon, Bernard Klotz & Co., a corporation limited, sued out an injunction restraining that officer and the defendants from proceeding further to dispose of the machinery and contents of a factory placed thereon by them while lessees.
¶3The injunction was maintained, except as to machinery and certain implements stated in the judgment, which were not placed on the said land by the lessees.
¶4The evidence maintains the correctness of that judgment.
¶5It is affirmed.
¶6The defendants, Charles Maeready et al, in the proceedings before us, sued William S. Benedict, Bernard Klotz and Lee Clark, and aver that- their judgment has been duly recorded.
¶7That in an act of sale dated the 9th of January, 1889, the price for which the property was sold to Bernard Klotz, by W. S. Benedict, was $50,000, of which $10,000 was paid in cash, and the remainder was to be paid in notes of $1000 each. Nine of these notes have been paid. The mortgage securing them has not been canceled.
¶8They further aver that there was a note of $10,000, secured by mortgage on the property at the time of the sale, which the vendor (Benedict) to Klotz promised to have canceled. It was his indebt*168edness, and an encumbrance on the property which he promised to cancel.
¶9This note was held by Lee Clark. Maeready et al., in their suit, claim the right to have the amount of the vendor’s mortgage ascertained and fixed, and to compel W. S. Benedict to extinguish the note for $10,000 and cancel the mortgage on the property under seizure. The defendants have filed separate answers. Prior to answering, Benedict filed the plea of no cause of action.
¶10In his answer he avers that the claim for $10,000 is valid and that a tender of the amount due was made. It was not accepted. The exception and merits were tried together. Klotz, the vendee, denies the right claimed, and Lee Clark in his answer alleges that he is the holder of the note for $10,000, secured by privilege and mortgage, and prays to be paid by preference over all others.
¶11Judgment was rendered in favor of Maeready et al. overruling the exception and decreeing that the mortgage in favor of W. S. Benedict, resulting from the acts of sale by him to Bernard Klotz, dated January 9, 1888, be reduced to the extent of $9000, being the nine notes paid of $1000 each.
¶12He was also condemned to pay to Lee Clark the amount of the two'notes and interest and other charges secured by privilege and mortgage on the property as before mentioned.
¶13Benedict and Klotz appeal.
¶14The facts needful to the decision of the case are sufficiently set forth by the statement that the amounts are due and secured as alleged, and that it is declared in the act of sale of January 9, 1889, that Benedict, the vendor to Klotz, promises to cancel the mortgage for $10,000 resting on the property he sold.
¶15It is not alleged, nor was it contended in argument, that there are any equities between Klotz and Benedict.
¶16Having sold the property and promised to cancel-existing encumbrances, there can be no question as to the right of the purchaser to require compliance.
¶17The agreement made was certain, fair and just.
¶18It can not be renounced to the detriment of the interest of-his creditors, whose claims are secured by mortgage on the property.
¶19Having a right which he does not choose to enforce, the question arises as to whether his creditor, whose claim is secured by mortgage, can compel compliance.
¶20*169The Oivil Code does not in express terms authorize creditors to-exercise all the rights and actions of their debtors.
¶21This court has not heretofore decided that only such rights and. actions of creditors may be exercised as are expressed.
¶22In Morris vs. Cain et al., 30 An. 759, the proceedings wereinthes nature of a bill of interpleader in chancery practice, not provided in. our Code of Practice: “ But under Art. 31 C. C., and on general principles this court has often held that the Code of Practice does not exclude all other remedies than those therein provided for, and that the courts will afford other appropriate remedies where not prohibited, and they have repeatedly enforced remedies identical with the one here invoked.”
¶23If not maintainable on equitable ground, “there is a principle of the civil law obtainable inLouisiana, by the aid of which there can be no doubt of its being maintainable.” N. O. vs. Gaines, 131 U. S. 213. Fortier vs. Slidell, 7 R. 399.
¶24There are rights, says the Code, which the creditor can not exercise even should the debtor refuse to avail himself of them. Art. 1991.
¶25The excepted rights do not include such a right as the one involved in this suit for it is not similar.
¶26The Civil Code expressly reserves to a creditor the right of intervention in all suits which may arise between the usufructuary and', the owner. Art. 623.
¶27He may cause to be annulled any renunciation made by his debtor of the usufruct, to his prejudice. Art. 624.
¶28He may accept an inheritance the debtor .refuses or neglects to-accept. Arts. 1021, 1990 O. C.
¶29Despite the debtor, he may plead prescription his debtor declines, to plead, or may choose to waive.
¶30These rights are not exclusive.
¶31The property of the debtor being the common pledge of hiss creditors.
¶32The obligation being attached to immovable property, being a right of property.
¶33Privity being the ‘ ‘ mutual or successful relationship to the same rights of property,” it is consistent with the articles referred to to include among the right of creditors that of compelling the vendor-of property to his debtor to cancel a mortgage on property mort— *170gaged- to secure his claim, and which the vendor promised and obligated himself to cancel — instead of classing it as a strictly personal obligation, when it is not.
¶34It is not a right of the debtor, which the creditors can not exercise, such as requiring the separation of property between husband and wife, or compelling him to accept a donation inter vivos, etc. C. C. 1991.
¶35It is not alleged, nor is it claimed, by Benedict and Klotz that specific performance is an issue involved in this case, to which they object.
¶36The defence is a denial of any right of the debtor Klotz against Benedict, the creditor of Klotz, can have enforced, in other words, they contend that a creditor can not exercise the rights of his debtor when the latter (to the detriment of the former’s interest) fails to exercise them. That being the defence, to that extent we decide the issues, and hold that it is not a strictly personal obligation, but one the creditor can exercise.
¶37A question of tender of an amount to take up the $10,000 note, ■secured by the mortgage which the vendor promised to cancel, comes up as one of the issues.
¶38The tender was made in the name of a third person, not shown to have had an interest.
¶39The tender was made to the attorney of Lee Olark.
¶40A question arose between the attorney and the party making the tender about distinguishing the payment from a sale or transfer.
¶41The attorney was without authority to transfer the note and merely change the creditor.
¶42It was a matter of payment vel non.
¶43Payment consists in the discharge of an obligation.
¶44The attorney of the holder could, before accepting the amount, insist upon payment.
¶45Judgment affirmed at appellant’s costs.