11 Rob. 225 | La. | 1845
This case presents the following facts: On the 9th. of May, 1829, an authentic act was executed by which the late Nicholas Girod agreed to lease to John F. Miller, for the term of twenty years, a certain lot of ground, situated in the faubourg St. Mary, being the square bounded by New Leveé, Girod, Tchou-pitoulas and Notre Dame streets, for the annual rent of #3000; and it is therein stipulated that, at the expiration of the lease, (9th of May, 1849,) “ Ledit sieur Girod, et ses héritiers ou ayans cause rentreront dans la possession etjouissance du dit lot de terre et des edifices y construits; et d cette epoque, toutes les hatisses et ame-liorations, de quelque nature qu’elles soient qui éxisteront sur le dit
The lessee took possession of the lot under the lease, and erected thereon eight two story brick buildings fronting on Girod street. On the 2d of November, 1840, he sold one undivided half of his interest in the lease and buildings to a third person, subject to the rights of several under tenants, and with the benefit of any buildings and improvements erected thereon by the latter; and, at other periods, executed mortgages on the other half, in favor of Samuel H. Turner, to secure the payment of $7,592 74, with interest, and of Joseph Fowler to secure the payment of $10,000, with the same interest.
The lessee made a surrender of his property to his creditors» and, on the 6th of June, 1842, his undivided half of the eight brick houses and lease was sold by his syndics at public auction, and adjudicated to the executors of the lessor for the sum of $11,200 cash. The executors pretended that the price of the adjudication should be compensated by a claim against the insolvent’s estate, due to Girod’s succession, for arrears of rent and taxes, amounting to upwards of $17,000, on their giving bond and security to contribute to the payment of debts having a preference
From the facts above stated, and the pleadings of the parties, it appears that the objection made by the syndics to allow the compensation claimed by the executors, is founded on the pre-tence that the premises, or their proceeds are not subject to the privilege on which the right of compensation is based; and that the mortgage creditors ought to have the preference on said proceeds. Hence the first question which presents itself for our consideration and solution, is, whether the right of the lessee to the buildings and lease, was susceptible of being mortgaged 1
That is a question of considerable importance, and although, from the stipulations contained in the contract of lease, the parties thereto may appear to stand towards each other in a peculiar situation, in relation to the property upon which third persons pretend to have acquired subsequent rights, we shall first examine it according to the general principles of law which may govern a case of this nature, without the stipulation upon which the appellees rely.
It will be conceded that under art. 3256 of our Civil Code, the following objects alone are susceptible of mortgage : 1st. Im-movables subject to alienation, and their accessories considered likewise as immovables. 2d. The usufruct of the same descrip-.
Now it is one of the well known principles of our laws, that •“ the property of the soil carries with it the property of all that which is directly above and under it” (C. C. art. 497); that all the constructions, plantations and works, made on or within the soil, are supposed to be done by the owner and to belong to him, unless the contrary be proved (art. 498); and that although such constructions and works have been made by a third person, with his own materials, the owner of the soil has a right to keep them, and they are acquired by him by virtue of the right of accession, on reimbursing to the owner of the materials, their value and the price of workmanship, without any regard to the greater or less value which the soil may have acquired thereby.
Art. 455 of our Code, referred to by the appellants’ counsel, says that buildings, or other constructions, whether they have their foundations in the soil or not, are immovable by their nature. This is true, but they are immovable only in relation to the soil, with regard to the owner of the soil; but not in relation •to the owner of the materials with which they have been erected. We have just now demonstrated the extent of the right of the latter; they are mere moveable rights, subject to be exercised at the option of the owner of the soil, and, if the buildings are to be taken away, they become moveables, after being detached from the soil; until then, however, they are immovables! as being a part of the estate composed of the soil and of the improvements, and may be mortgaged by the owner of such estate. Duranton, Yol. 19, No. 258.
Under the French laws it is well settled, that a right of em-phytéoses (unknown to our laws,) a hail emphytéotique, is susceptible of being mortgaged. Duranton, Vol. 19, No. 268. Troplong, Hypoth, Vol. 2. No. 405. But this is peculiar to the French legislation, and is governed by special laws upon the subject. In contradistinction, however, with the right of mort
But, by the very terms of the contract in this case, no doubt can be entertained, as to the intention of the parties, that the lessor should be considered as the owner of the improvements; he is to have, at the expiration of the lease, the possession and enjoyment of the lot and buildings; they are to become his property, without his being bound to pay any compensation; this last clause was inserted in the act undoubtedly to avoid the exercise of the lessee’s right, under, art. 500 of our Code, by which the latter would be entitled to claim a compensation; and we do not hesitate to decide, that the lessee, having nothing but a mere moveable right of possession and enjoyment of the premises, resulting from the cpntract itself, and even from the law, he could not validly mortgage them, They were not his absolute property, and he had no right tp alienate them.
From this view of the question it results, that the appellants, Turner and Flower, are not mortgage creditors of the insolvent; that they are mere ordinary creditors; and that they have no right, as such, to dispute the application pr imputation of the
In relation to the liquidation of the appellees’ claim for rent and taxes against the estate of the insolvent, we think that as' to the amount of rent due, the liquidation is correct. It was admitted on the trial that the rent from 1839 to 1841 was settled by notes, amounting together to $6,150; that the syndics are yet (on the day of the trial, which took place in July, 1844,) in possession of the premises, and that there is an agreement for the collection of the rents; and the record shows sufficiently that, the syndics having refused to deliver possession of the property to the executors, they, said syndics, kept the control and possession of it, so as to continue to collect the whole of the rents from the under tenants. This makes them responsible for the whole rent to the appellees, and threfj years thereof ($9000 to the 9th •of May, 1844,) was properly Allowed below.
With regard to the reimbursement of the claim for taxes, we think it has been fairly and. justly liquidated. The contract contains a clause in which it is stipulated that: “ Les taxes d’etat et de paroisse sur le dit lot. de terre susdécrit seront payees par M. Girod ou ayans cause ; ¿es dites-taxes sur les batisses qui seront con-struites sur le dite loí terre seront payees par le dit sieur Miller ou ayans cause” Gircd, and, since his death, his executors have always paid the wlfole of the taxes, while Miller was bound to pay the state an.d parish taxes due on the buildings; but they were assessed^ together, and it became necessary below to resort to parol. evidence to ascertain the proportion which Miller was to pay for the buildings; and this brings us to the consider-'
In conclusion, we are of opinion that, the claim of the executors, under the contract, not being in conflict with the superior rights of any other creditor of the insolvent, the compensation-contended for by the appellees was correctly maintained below j that the amendment to be made to the tableau of distribution-filed by the syndics, is fully supported by law and by the evidence ; and that the judgment appealed from is in all respects-correct.
Judgment affirmed*