36 La. Ann. 146 | La. | 1884
The opinion of the Court was delivered by
The salient facts of this suit are -stated in the opinion of the case No. 8903, between the same parties, just decided.
After the sequestration of the mare Lucy Johnson, Street intervened in the partition suit for the purpose of enforcing his contract of December 12, 1882, and of asserting his rights of possession of the mare thereunder.
His demand was resisted by plaintiff on the ground that Lemons had no right or authority to bind Triskett' and Mullen, his co-owners of the mare, in a contract of- lease; that there could he no lease without a fixed price; that the pretended lease was the result of a conspiracy between Lemons and Street, with the intention of defrauding the law
The evidence is conflicting; but, after a careful analysis of the record we find satisfactory proof of the following facts:
1. That Lenions.was the owner of one undivided third of the animal, which was then in his possession, and that he was without funds or means necessary to a proper care and training of the animal.
2. That, he had full authority and power, from Triskett, to control and clisi>ose of the mare as he thought proper.
3. That after making the alleged contract with Street, he notified both of the joint-owners of his action, hy letters properly mailed to each at his residence.
4. That by letter from Mullen to Lemons, the former unequivocally ratified the contract aforesaid, and highly approved of the same.
5. That the mare was in the custody and possession of Street, when she was seized hy the sheriff'.
The fact that at the very moment of the seizure, Lemons was leading her around the race track, did not affect Street’s possession under his contract. She was kept, fed and handled at his stable near the race course.
The feature of the contract which provided, as a consideration, the division of the mare’s net earnings, instead of a fixed price, did not’ invalidate the contract as a lease. The price of the contract of lease “ may consist in a portion of the fruits yielded hy the thing leased. ’ Civil Code, art. 2671.
The contract relied upon by the iutervenor, therefore, embodies all the elements of a lawful contract of lease, fully binding on Lemons and Ms co-owners, who could not, in law, defeat intervenor’s rights under Ms lease by a sale of the thing leased.
Hence, we conclude that he was illegally and wrongfully deprived of Ms possession of the mare, and that the lower court erred in dismissing his intervention.
The judgment appealed from.is, therefore, annulled, avoided and reversed. And, it is now ordered and decreed that the mare, Lucy Johnson, was wrongfully sequestered from intervenor’s possession; that iutervenor was entitled to the possession, control and use of said mare from the 12th of December, 1882, to the 12th of October, 1883,
All costs incurred in the sequestration and costs of this appeal to be paid by plaintiff and appellee.
Rehearing refused.
