Fisk v. Moores

11 Rob. 279 | La. | 1845

Mouphy, J.

The defendant was allowed by the plaintiff the privilege of occupying, without pay, certain premises he owned in Julia street, on condition that he should remove therefrom ■whenever required to do so. Shortly after, the plaintiff having found a tenant for the premises at a yearly rent of $1250, notified defendant to leave, which the latter neglected or refused to ' do for more than three months, when the present trial was brought to regain possession. The plaintiff claims $434 50 for the occupancy of the lot during the three months; $200 for cash loaned to defendant; $25 for damages done to the premises in tearing down the fences; and $6 for money expended in piling lumber in the yard — the whole with a privilege on all the movables found on the premises, which he caused to be sequestered. There was a judgment below in favor of the plaintiff for $543 50, with a privilege upon the property sequestered. The defendant appealed.

A motion was made below to set aside the sequestration, which, in our opinion, should have prevailed. It issued, we think, improvidently. The mere occupancy of property does not necessarily imply the relation of lessor and lessee, and thus give rise to the landlord’s lien or privilege. If it be against the will of the owner, such occupancy may entitle the latter to the estimated rents of the property, as damages for the trespass or illegal detention; but the landlord’s lien or privilege grows only out of the contract of lease, which clearly did not exist between these parties. Far from there being any stipulation for a rent, ^ which is of the essence of a lease, the defendant took possession of the property under the express agreement that he should pay nothing, and should restore it as soon as required to do so. The reiterated notices to quit which he received from the plaintiff, excludes all idea even of an implied contract of lease. Civil Code, art. 2641. 12 La. 492. 15 La. 372. Liens and privileges exist only in those cases where they are expressly given by law. They are siricti jurisf and cannot be extended from one case to another, however just and reasonable it may appear that they should be so extended. Civil Code, art. 3152. 17 La. 160. 18 La. 70.

The several amounts allowed by the judgment appealed from appear to us sufficiently proved. That of $200, which is alleged to be for money loaned, is shown by the evidence to have been an advance on a contract by which the defendant was to furnish lumber to the plaintiff. After a quantity of between 30,000 and 40,000 feet of lumber had been brought into the lot, and represented to plaintiff as sufficient to cover an advance of #200, which defendant was desirous of obtaining, the former was prevailed upon to give the money. Shortly after defendant sold the greater part of the lumber, leaving in the yard only about 6000 or 8000 feet of it, which were afterwards sequestered as defendant’s property, and sold by the sheriff, by consent of parties. Under these circumstances the plaintiff is, we think, entitled to recover back his money.

Elmore and W. W. King, for the plaintiff. Winthrop and Kennedy, for the appellant.

It is, therefore, ordered, that the judgment of the District Court be reversed, so far as it allows a privilege on the property sequestered, and that it be affirmed in all other respects ; the plaintiff and appellee to pay the costs below incurred for the sequestration, and those of this court.