Barron v. Duncan
6 La. 100
La.
1833
Check Treatment
Maktin, J.,

delivered the opinion of the court.

The plaintiff and appellant complains of a judgment dissolving an injunction to prevent the defendant from proceeding to the sale of a lease granted by him, the plaintiff, to the defendant’s testatrix, which contains a clause restrain, ing her from transferring and abandoning the premises to any person whomsoever, without the consent of the lessor in writing.

His counsel has contended that the court erred because the lease was a personal one. Civil Code, 1994, and as it was an heritable one it descended with the restricting clause^ 2003.

On the part of the appellee it has been replied, that a lease makes part of the estate of the lessee, and as such may and must be sold by his executors to pay the debts and legacies; and that this even is the case when the lease contains a clause restraining the lessee in the faculty of alienating to cases in which he may obtain the consent of the. lessor,

jf the lesece by j?Pre.“ ^ip“j£ proMb°itcdaSfrora Sir°tÓmí outdfhoSOiessDr‘¡ This™reS«on * transfer the lease eyen againRt the lessee’s will. Peirce and Benjamin, for plaintiff and appellant then moved for a rehearing on the following grounds: 1. Every one of the common law authorities cited by defendant, decides the question now submitted to the court upon technical reasons unknown to our jurisprudence, and upon principles directly the reverse of those established by our law. All those writers declare that the executor is not bound by the restricting clause “because not named in it.” But the Civil Code of Louisiana, art. 2003, establishes the opposite principle, which of course must lead to a result directly opposed to that of the common law writers. That art. of the code says, that. “heritable obligations and stipu-

The counsel, however, has pot been fortunate enough to discover positive authorities in support of his opposition. Those which he has adduced from the common law, are respectable and cogent. 2 Williams on Executors, 614 and 615. 4. Kent's Com. 2d edition, 124 and 130. 3. Comyn's Digest, 101, 113, and 124. The principle these authorities establish is that such a restricting clause cannot protect the property of an individual when justice requires it to be turned into cash to satisfy the claims of third parties, as in cases of a cession of goods, or for the liquidation of a sue-cession. The district judge has admitted the authorities of the decisions which support the opinions of these able common law writers, was not binding on him. He has deemed it his duty to compare this restricting clause strictly in obedience to the article of our code, which recognises it 2696, and it does not appear to us he has erred in his endeavor to give it that strict consideration which the legislator imperiously demanded when he restricted the clauses to the voluntary transfer and abandonment, made by the lessee himself, leaving third parties, such as creditors and legatees, the faculty of exercising any right they might have on the

It is therefore ordered, adjudged, and decreed, that the judgment of the district court be affirmed with costs.

2. But the court says in its judgment, that the art. 2697, of CivH Code, requires the clause to be strictly construed. True, therefore, if the expressions contained in the act were of doubtful import, if they were susceptible of more than one interpretation, it would be the duty of the court to lean towards that construction which would most favor the free disposal of property; but where, as in the present case, there cannot be a shadow of doubt as to' the real intention of the parties, where the whole tenor of the instrument shwos that they intended that lessor should control the alienation of the lease, as they might deem proper. Surely the strict construction required by the legislature, cannot be such a construction as would render nugatory the clause introduced for his protection and authorise the court to depart from the great principle of justice sanctioned in art. 1940, Civil Code, that the intent of the parties to an agreement has the effect of law between them. 3. The court decides that executor may alienate although deceased could not; are not the powers of the executor derived from deceased? Is he not her mandatory? And can a party grant more right to a power than he himself possesses. Again, during the life of testatrix, lessor had the right of controlling the alienation of the lease; can her death abridge or effect his rights without an express consent to that effect? 4. The court says again, that the rights of third persons such as creditors and legatees cannot be effected by this clause. The appellant believes the court to be in error in relation to the facts. The only evidence on file in the cause, shows that after paying all claims against the estate, and making every allowance for bad debts, there exists in favor of the estate, a nett surplus exclusive of this lease of seven thousand four hundred and seventy-four dollars. The rights of creditors then cannot possibly be compromised by any decision given in the cause, and there is nothing to show that any legacies have been made by testatrix. But admitting that she has bequeathed a sum exceeding this surplus, she has bequeathed what did not belong to her, and the appellant is ignorant of any rule of law or equity which obliges him to make up the deficiency. The motion for a rehearing was overruled.