Boylston v. Jones

• Decision Date: 02 March 1934
• Docket Number: 4726
• Citation: 153 So. 53
• Court: Court of Appeal of Louisiana — District of US
• Parties: BOYLSTON et al. v. JONES (CLARK et al., Interveners)

153 So. 53

BOYLSTON et al. v. JONES (CLARK et al., Interveners)

No. 4726

Court of Appeal of Louisiana, Second Circuit.

March 2, 1934

Stephens & Stephens, of Coushatta, for appellants.

S. M Cagle, of Coushatta, for appellees.

OPINION

MILLS Judge.

This suit is brought by the owners of the old Boylston place located near Gahagan, in Red River parish, against their lessee, Paul Jones, for rent of farming land for the years 1931 and 1932, at $ 125 per year. They claim a lessor's lien and privilege upon the 1932 crop and all property found upon the leased premises. Writs of provisional seizure issued under which seven bales of cotton and other property were seized. Of the seven bales of cotton, four were raised upon adjoining land known as the Clark place, and removed to the Boylston place. The owners of the Clark place, Mrs. Ruth Clark Tanner, Mrs. Lucille Mosley, Martha Clark, through her tutrix, Mrs. Mattie Clark, intervened, claiming a lessor's lien upon the four bales of cotton removed from their place for their rent, amounting to $ 95, covering the year 1932, and asking for judgment against defendant in that amount with recognition of their lien and their right to payment by priority out of the proceeds of the sale of the four bales of cotton. They also claim damages in the sums of $ 15 for attorney's fees and $ 25 for loss of time, worry, and annoyance. There is no present dispute except as to the four bales.

On the trial of the case, defendant making no appearance, a default judgment was rendered against him in favor of plaintiffs for $ 200, and in favor of interveners for the sum of $ 95. Plaintiffs' lien and privilege for the 1932 rent, fixed at $ 100, was recognized upon all the property seized. Interveners' claim to a lessor's privilege on the cotton was rejected. Defendant was cast for all the costs except that of the intervention, which was assessed against the intervener Mrs. Mattie Clark. From this judgment interveners alone appeal.

There is no dispute as to the facts. Admissions in the record establish that the allowance of rent in favor of plaintiffs for $ 100 a year was correct. Except for the formal proof of the issuance of the writs and the seizure thereunder, no evidence was offered except the following mutual admission:

"It is admitted that Paul Jones leased from interveners herein certain land on the Clark Place during the year 1932 for the sum of $ 95.00; that plaintiff herein seized seven bales of cotton as the property of Paul Jones, and that four bales of the cotton were raised on the Clark Place, leased by the defendant, during the year 1932; that no part of the rent Paul Jones agreed to pay interveners during the year 1932 has been paid; that of the four bales bonded herein by interveners, two of them had been removed from the Clark Place for more than 15 days previous to the intervention, and two of them had been moved off the Clark Place less than 15 days, and as to these last two, the 15 day rule does not apply. It is further admitted that Paul Jones purchased from the oil company the house in which the cotton was stored, but said house was located on the property of the Boylston heirs. It is further admitted that the four bales of cotton raised on the Clark Place and bonded herein averaged 491 pounds in weight. "It is further admitted that of the seven bales originally seized, one bale has been released to Mrs. Clark, and that of the remaining six bales two were raised on the Boylston property and four bales on the property of Mrs. Clark, and that the said four bales when seized were stored in the house purchased by Paul Jones from the oil company and situated on the Boylston plantation, with the consent of the intervener. That the bale released to Mrs. Clark weighed 480 pounds and brought $ 26.40, which was credited by Mrs. Clark on a back debt due her by Paul Jones for rent for the year 1931; that interveners bonded the four bales raised on the Clark Place and the other property seized remains yet in the hands of the sheriff." We are of the opinion that the admission in the record that the four bales in dispute were moved, with their consent, from the place of interveners on to that of plaintiffs, is fatal to interveners' case. Article 2709 of the Civil Code, referring to the lessor's right of pledge, reads as follows: "In the exercise of this right, the lessor may seize the objects, which are subject to it, before the lessee takes them away, or within fifteen days after they are taken away, if they continue to be the property of the lessee, and can be identified." Article 288 of the Code of Practice reads: "The lessor may seize, even in the hands of a third person, such furniture as was in the house leased, if the same have been removed by the lessee, provided he declare on oath that the same has been removed without his consent, within fifteen days previous to his suit being brought." If the additional requirement that the lessor make oath that the removal was without his consent conflicted with article 2709 of the Civil Code, the provisions of the Code of Practice would prevail. Flower v. Griffith, 6 Mart. (N. S.) 93.

But in the case of Desban v. Pickett, 16 La.Ann. 350, it is held that it does not conflict; that the two articles are in pari materia; that article 288 of the Code of Practice should be incorporated into article 2709 of the Civil Code, so that full force and effect would be given to all the provisions of both articles. While article 288 particularly refers to furniture in the house, we see no reason why, when it is incorporated in article 2709, it does not require, in all cases where property has been removed from the leased premises and is sought to be seized by the lessor, that it must be shown the removal was without the consent of the lessor. Indeed, we think the legal effect would be the same without the use of the words "without consent" in either article. The right conferred upon the lessor by article 2705 of the Civil Code is more than a lien or privilege; it...