63 So. 93 | La. | 1913
Lead Opinion
Plaintiff is a materialman, suing the defendant for the value of materials used in the building of a barn on the property or plantation of the intervener, Mrs. Field F. Montgomery, and for the recognition of a lien upon said barn. Plaintiff obtained judgment, and proceeded to advertise and sell the barn.
Mrs. Montgomery, the owner of the plantation upon which the barn was built, intervenes, alleging that she is the owner of the barn; that it is not the property of the defendant or subject to his debts; and that plaintiff has no lien thereon. She further alleges that the barn was built partly of materials belonging to her, obtained by the demolition of a barn which stood upon said plantation for many years, and partly of materials belonging to the defendant; and that
The judgment of the Court of Appeals is in favor of plaintiff; and intervener asks that we review same.
The record is before us.
Intervener did not take the witness stand, and she offered no evidence whatever in support of the allegations contained in her petition. In the answer to the petition of intervention, interrogatories on facts and articles were propounded to intervener by plaintiff, and her answers thereto constitute the only evidence in the record in her behalf. When asked what portion of the lumber of the old barn went into the erection of the new barn, she answers that she does not know, as she was not on the place while the barn was being built. The testimony offered on behalf of plaintiff shows that the new barn was built entirely with materials belonging to the defendant, some of which he bought from plaintiff. It also shows that the new barn was built before the old barn was demolished. Intervener was not therefore primarily the owner of the new barn or any part theréof. The evidence further shows that defendant erected a small harness room to one side of the new barn, under a second contract with a builder, and that a very small portion of the material of the old barn was used in building the harness room; but that it is not a part of the barn. When asked as to the time of the building of the new barn or the destruction of the old one, she answers that she does not know, as she was not present and had nothing to do with the contract for the building of the barn. She was interrogated as to the lease, and she answered that there was no written contract of lease, but for most of the years that defendant leased the place he executed rent notes. But she does not offer the rent notes in evidence to prove the amount due. She answered that defendant had taken the plantation for an indefinite time, and had agreed to pay $2,250 per annum, except for the year 1909, when the rent was $2,500; that the rent had never been paid in full; and after three years a balance had been arbitrarily fixed at $1,000; that during the last four years no rent had been paid, except the taxes on the property amounting to about $500 a year; that “the allowance for the barn is to be credited on the balance due at the time it was turned over,” at which time defendant owed her $5,000 rent; and that when he gave the place up January 1, 1910, he owed her over $6,000. Yet in her petition she only asks that she be paid $2,500 for rent, by preference, out of the proceeds of the sale of the barn.
It is unnecessary to here determine the amount of rent which may be due intervener by defendant.
With reference to the transfer of the barn by defendant to intervener, the latter says:
“Both he (the lessee) and I had considered that the new barn was mine all the time.”
Again she says:
“After it had been some time built, in the latter part of 1908, defendant being largely in arrears on the rent due me; * * * I consented to giving him a credit on the rent claim for some of the expenses” (of building the barn).
This testimony is contradictory; it does, not prove the transfer of the title of the les
The intervener was not the owner of the barn at the time that plaintiff recorded its claim for material furnished to Davis for the erection of the barn.
Article 3249, par. 3, C. C., gives to material-men liens and privileges upon the buildings for which materials were furnished; but not upon the lot of ground, when said lot belongs to another person.
“And if such building, improvement, or other work is caused to be erected by a lessee of a lot of ground, in that ease the privilege shall exist only against the lease and shall not affect the owner.”
In the case of Schwartz v. Saiter, 40 La. Ann. 270, 4 South. 80, we construe this last-quoted clause as follows:
“We are not aware of any decision of this court that has ever given an interpretation of this article; but it is reasonable to infer, from the provision quoted, that the lease contemplated is one of property that is unimproved ; that the owner thereof shall not be affected by any construction subsequently erected thereon by the lessee, and which was not originally part of the ‘property under the lease’; and that the contractor who erected it has a privilege thereon as an integral part of the ‘lease.’
“Antecedent to the revision of the Code in 1870, the contractor had no such privilege. It is not awarded against the lessee, but against the lease. The quoted paragraph declares that it shall not affect the owner.
“The employment of these terms clearly indicates its purpose and object to be that the construction forms a part of the lease, and that the privilege of the contractor attaches to it: In this manner it could be made effective. But should it be held that such a construction or work became the property of the lessor of the lot of ground, free of the contractor’s lien, it would be deprived of all force * * * as nothing applicable to it would remain.”
The lieu of plaintiff therefore attached to the barn while it was the property of plaintiff who had constructed it, and as the lien was recorded prior to the time that the barn passed into the possession of the intervener, on the final termination of the lease, it primes the lessor’s privilege for rent.
Intervener also complains that plaintiff’s bill for materials was not given in sufficient detail, and it was not shown that the material was all used in the construction of the barn. The bill filed in the record is in full detail, and the evidence for plaintiff shows that the material was used by the defendant in the erection of the barn referred to.
We fully concur with the Court of Appeals in its finding of facts and application of the law thereto.
It is therefore ordered, adjudged, and decreed that the judgment of the Court of Appeals is affirmed at the cost of relatrix.
Rehearing
On Rehearing.
The plaintiff, the Carroll Lumber Company, sued the defendant, Davis, for the unpaid price of lumber sold to him, and caused the barn on the plantation of the intervener, Mrs. Montgomery, to be sequestered, on the theory that the building belonged to Davis, who had constructed it as lessee of the plantation, and that the lumber- had entered into the construction of it, and, as a consequence, the unpaid purchase price of the lumber was secured by a privilege on the building.
Mrs. Montgomery intervened, claiming ownership of the building; and, in the alternative, claiming a lessor’s privilege and right of pledge upon it, priming the alleged privilege of plaintiff.
Mrs. Montgomery was under the impression that this barn had been constructed in part out of the materials from another barn torn down on the place; but she does not pretend to have known this of her own knowledge.
“What delivery of the barn was, made to you ?”
She answered:
“It was always on my land, and still is, and I do not see how it could be delivered to me any more than that.”
Nor do we. The only other way would have been to have moved the building from the plantation, or for the lessee to have removed from the plantation; and the law required nothing of that kind to be done. Just such a situation as this is contemplated by the Code:
“Art. 2478. The tradition or delivery of movable effects takes place either by their real tradition, or by the delivery of the keys of the buildings in which they are kept; or even by the bare consent of the parties, if the things cannot be transported at the time of sale, or if the purchaser had them already in his possession under another title.”
The dation en paiement was therefore completed and made perfect by delivery.
The judgment of the Court of Appeals is therefore set aside, and that of the district court is reinstated and made the judgment of this court. Plaintiff to pay the costs of this court and of the Court of Appeals.