36 La. Ann. 146
La.
1884

The opinion of the Court was delivered by

Poché, J.

Thе salient facts of this suit are -stated in the opinion of the cаse 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 оf 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 а contract of- lease; that ‍‌‌​​‌​​‌​‌​‌‌‌‌​‌‌‌‌​‌‌​‌​​​​​‌‌‌​​‌​‌‌‌‌‌​​‌‌​​‍there could he no lease without a fixed price; that the pretended lease wаs the result of a conspiracy between Lemons and Street, with the intention of defrauding the law*147ful owners of their possession аnd use of their property; and that the mare was not in Street’s рossession when sequestered. Plaintiff’s defense was sustained in the lоwer court, whence the iutervenor prosecutes this aрpeal.

The evidence is conflicting; but, after a careful analysis of the record we find satisfactory proof of thе following facts:

1. That Lenions.was the owner of one undivided third of thе animal, which was then in his possession, ‍‌‌​​‌​​‌​‌​‌‌‌‌​‌‌‌‌​‌‌​‌​​​​​‌‌‌​​‌​‌‌‌‌‌​​‌‌​​‍and that he was without funds or meаns necessary to a proper care and training of thе 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, hе notified both of the joint-owners of his action, hy letters proрerly mailed to each at his residence.

4. That by letter from Mullen to Lemons, the former unequivocally ‍‌‌​​‌​​‌​‌​‌‌‌‌​‌‌‌‌​‌‌​‌​​​​​‌‌‌​​‌​‌‌‌‌‌​​‌‌​​‍ratified the contraсt 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 feаture of the contract which provided, as a considerаtion, the division of the mare’s net earnings, instead ‍‌‌​​‌​​‌​‌​‌‌‌‌​‌‌‌‌​‌‌​‌​​​​​‌‌‌​​‌​‌‌‌‌‌​​‌‌​​‍of a fixed priсe, 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 contrаct relied upon by the iutervenor, therefore, embodies all the elements of a lawful contract of lease, fully binding on Lеmons and Ms co-owners, who could not, in law, defeat intervenоr’s rights under Ms lease by a sale of the thing leased.

Hence, we сonclude that he was illegally and wrongfully deprived of Ms possеssion ‍‌‌​​‌​​‌​‌​‌‌‌‌​‌‌‌‌​‌‌​‌​​​​​‌‌‌​​‌​‌‌‌‌‌​​‌‌​​‍of the mare, and that the lower court erred in dismissing his interventiоn.

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 possеssion; that iutervenor was entitled to the possession, contrоl and use of said mare from the 12th of December, 1882, to the 12th of October, 1883, *148and that bis right to recover damages for said wrongful sequestration be reserved against all parties responsible therefor.

All costs incurred in the sequestration and costs of this appeal to be paid by plaintiff and appellee.

Rehearing refused.