159 So. 648 | La. Ct. App. | 1935
Alleging that he was the lessor of the trapping privileges on certain described lands situated in the parish of Jefferson and that defendant, the lessee, owed him the sum of $222.50 on the rental of $350 that was due for the year 1932, plaintiff, on January 16, 1933, obtained a writ of provisional seizure on all movable property belonging to the defendant which was then on the leased premises, and on which he alleged he had a pledge for the payment of his rent.
Acting under authority of the writ, the sheriff seized and took in his possession the following property: "All steel traps, (2) pirouges, (272) furs and 2 minks and the gasoline propelled boat named `Century.'"
After the seizure of his property, defendant appeared in court to move for the dissolution of the writ and demand attorney's fees for its dissolution, in the sum of $100. The principal issue raised in the motion to dissolve is that the plaintiff did not enjoy the lessor's privilege he claims as the contract between them, which, it might be here stated, was oral, did not constitute a lease, but was merely the grant of a servitude. The motion is also based on the failure of plaintiff to have alleged in his petition that he is the owner or lessor of the land said to have been leased. It is also urged that, if there had been a breach of the contract, before resorting to the process which he did, plaintiff should have brought a suit to have the contract declared null.
There was judgment in the lower court in favor of the plaintiff denying and dismissing the motion to dissolve, and the matter is now before this court on a devolutive appeal from that judgment.
Taking up the contentions of the defendant in the reverse order in which we have referred to them, we find no merit in the one mentioned last, which is to the effect that, before seeking to enforce his right by means of a writ of provisional seizure, plaintiff should have brought a suit to have the court decide first, whether there had been a breach of the contract. Article
The contention that defendant is entitled to a dissolution of the writ because plaintiff failed to allege in his petition that he was the owner or lessor of the property, in order to show his authority to lease, is equally without merit. The question of the ownership of leased property is one which concerns the owner and the lessor, and it cannot be raised by the lessee as a defense in an action by the lessor to enforce his obligations under the lease. According to the terms of article 2682, R. C. C., "he who lets out the property of another, warrants the enjoyment of it against the claim of the owner." That is the security afforded the lessee; and, in case of any adverse claim of ownership, he has the right to rely on the warranty of his lessor. In Sientes v. Odier Co., 17 La. Ann. 153 and in Spence v. Lucas,
We come now to what we consider the principal issue in the case, which is in regard to the real contractual relation between the parties. The contention made by defendant's counsel, as already stated is that the agreement between them resulted merely in a grant of a servitude, and not in a contract of lease under which plaintiff enjoyed the privilege of a lessor.
Plaintiff's petition alleges that "on or about October 20, 1932, petitioner leased to Benoit Autin, of the Parish of Lafourche, the trapping privileges on the following described land situated in the Parish of Jefferson, to-wit:" (A description of the land then follows.) It is then alleged that the rental was fixed for the entire trapping season, at $350, payable in a certain manner fully thereafter detailed. Further, it is averred that, under the method of payment as set out, defendant was credited on one occasion with the sum of $37.50 and on another with the sum of $90. These two payments amount to $127.50, which, taken from the total amount of the rent for the season, $350, leaves the balance of $222.50, which plaintiff claims to be due and for which he obtained the writ of provisional seizure.
The agreement between these parties as set out in plaintiff's petition was clearly a contract under which defendant was to trap plaintiff's lands and catch fur bearing animals thereon, for the exercise of which right or privilege he was to pay a fixed and determinate price. The question that arises then is, Can such a right or privilege form the object of a valid contract of lease?
Civil Code, art.
Reference was made in argument to the decisions of the Supreme Court in the Frost-Johnson Lumber Company Cases which culminated in the very close decision in the case of Frost-Johnson Lumber Co. v. Salling's Heirs,
Our examination of the authorities discloses that, in all those cases in which there had been a sale or a reservation of the mineral rights, the effect produced by the sale or reservation was the creation of a right of servitude. Holladay v. Darby,
It is interesting to note that in a recent case the Supreme Court was called on to consider the question whether a certain agreement between the plaintiff in that case and the then commissioner of conservation, and which, in substance, amounted to the grant of the trapping privileges on certain lands for a stipulated consideration, constituted a contract of agency or one of lease, and it was therein distinctly held to be a lease. We refer to the case of Gordy v. Maestri, Commissioner of Conservation, et al.,
We find all those same elements present in the agreement under consideration in this case, and, following the reasoning of the court just quoted, we hold that the contract was one of lease and that consequently the lessor enjoyed the lessor's pledge, lien, and privilege which he claims.
In brief before this court, counsel for defendant has raised the additional issue that the traps said to have been seized are exempt from seizure, being tools and instruments used by the defendant and necessary for the exercise of his trade by which he gains his living. The record contains no plea whatever relating to a claim for exemption, and the question is raised for the first time, as stated, before this court. We understand the law to be that a claim for exemption must be presented by a special plea, and, in the absence of any such plea in this case, we decline to consider the question.
The judgment appealed from is correct as it is therefore affirmed.
*745MOUTON, J., not participating.