L'Hote & Co. v. Fulham

• Decision Date: 17 April 1899
• Docket Number: 12,955
• Parties: L'HOTE & CO. v. WM. C. FULHAM
• Court: Louisiana Supreme Court

25 So. 655

51 La.Ann. 780

L'HOTE & CO. v. WM. C. FULHAM

No. 12,955

Supreme Court of Louisiana

April 17, 1899

Argued April 5, 1899

ON APPEAL from the Civil District Court for the Parish of Orleans. Rightor, J.

Howe Spencer & Cocke, for Plaintiffs and Appellees.

E Howard McCaleb for David G. Baldwin, Third Opponent Appellant.

OPINION

NICHOLLS C.J.

The plaintiffs having obtained judgment against the defendant, issued execution thereon and seized certain chandeliers, mantel ornaments and other articles alleged to belong to W. C. Fulham, but which were in the possession of D. G. Baldwin.

The latter filed his intervention and third opposition alleging that he was the owner of the articles seized inasmuch as he had purchased at foreclosure sales the buildings in which they were situated, and as they were immovable by destination, they were subject to the mortgage foreclosed and passed by the sheriff's sale to the purchaser of the real estate.

L'Hote & Co. answered, pleading the general issue.

The District Court rendered judgment in favor of L'Hote & Co.

The seizing creditors and third opponent appealed.

Appellant in his brief presents the following as the statement of his case:

"In June, 1895, the defendant mortgaged in favor of the estates of D. C. and H. C. McCan various lots of ground in New Orleans, with all the buildings, improvements, rights, privileges, advantages and servitudes thereon. Mrs. Stemple as tutrix of the minor heirs of McCan, owners of the mortgage notes, caused executory process to issue.

"After the writs of seizure and sale were in the sheriff's hands, the parties agreed that 'the property herein seized under executory process should be sold for cash, the defendant hereby waiving the prematurity of the principal mortgage note held by plaintiffs, and it is further agreed that the civil sheriff be authorized to cause plans of the property to be made so that each house embraced in the mortgage property may be sold separately.' The properties sold under these foreclosure proceedings were duly advertised by the sheriff:

"No. 1817 Napoleon avenue, was described as being 'a handsome two-story and attic frame residence, containing ten rooms, bath, pantry, etc., also four rooms in attic. All modern conveniences.'

"No. 1910 Berlin street was described in the advertisement as follows: 'The buildings thereon, bearing the new municipal number 1910 Berlin street, being modern two-story frame residence, containing nine rooms, galleries, bath, and all modern conveniences.'

"No. 1838 Berlin street as being 'modern handsome two-story and attic frame residence containing ten rooms, bath, pantries, and three rooms in attic; all conveniences.'

"No. 1925 Berlin street as 'containing reception hall, four bedrooms, closet, outhouse contains bedroom and wood shed and bath room; electric bells, speaking tubes, etc.'

"No. 1922 Berlin street, as 'being modern two-story frame residence, nine rooms, halls, galleries, baths, pantries, etc.; walls handsomely papered, hardwood mantels, electric bells, etc.; banquette and yard paved with schillinger; gas, waterworks, etc.'

"No. 1829 Napoleon avenue, as 'being modern two-story frame residence containing twelve rooms, galleries, bath, all modern conveniences.'

"These properties together with all the improvements were leased by Fulham to different parties before the time of the seizure in these cases.

"Defendant Fulham was present at the sale and made no objection to the adjudication of the several properties to the opponent.

"The things seized in No. 1829 Napoleon avenue were contained in the property occupied by Thomas J. Duggan as tenant. He had been there five or six years. They were put in by W. C. Fulham. Those in No. 1929 Napoleon avenue, occupied by Mrs. Woeste, were put in there by the owner Fulham. Those in No. 1817 Napoleon avenue, occupied by Mrs. Rice, who had been living there as tenant for seven years, were in the house since she had lived there. Those in No. 1817 Berlin street, occupied by S. H. Kennedy, were all there when the tenant took possession, except the brass lights in the fourth bedroom, which had been there for three years.

"The third opponent as purchaser took possession of the properties as well as the things contained within, and remained in continuous possession until the articles were seized on October 17, 1896, following the sale."

Opponent in his brief laid considerable stress upon the terms of the advertisement of the property, upon defendant's consent that "the houses should be sold separately," the presence of the owner at the sale, his making no opposition thereto, nor to the purchasers taking possession, and upon Art. 480 of the Civil Code which provides that "the sale or gift of a house with all that is in it does not include the money nor the credits nor other rights which may be in the house; all other movable effects are included."

He referred the court to Articles 468, 2489, 2490 of the Civil Code; to Merlin Repertoire de Jurisprudence verbo "Accessoire," p. 109; to Fink vs. Brigaldi, 4 Daly (N.Y.) 359; to Sewall vs. Angerstein, 18 Law Times N.S., 300; to Johnson's Executor vs. Wisemans Exec., 4 Metcalf (Ky.) 357; to Marcade, Vol. II., p. 333, et seq., and to Mackie vs. Smith, 5 Ann. 717.

Appellee referred the court to Articles 468, 469 of the Civil code; 5 Vol. Laurent, § 434, pp. 539-540, 543; also 5 Vol., p. 547, par. 441, Cassation, 17 January, 1859; 5 Laurent, 578; Sacre vs. Klein, Sirey, 80, I. 409, Sirey, 59, I. 519, Id. 78, I. 353, Id. 80, 2, 332; Kerecht vs. Philharmonic Society, 79 Penn. State 403. Vaugh vs. Halderman, 33 Penn. State 522. Rogers vs. Crow, 10th Missouri, 91. Towne vs. Fiske, 127 Mass. 125. Guthrie vs. Jones, 108 Mass. 191. Keage vs. Hanover Ins. Co. 81 N.Y. 38. Same vs. Same, 37 Anl. Rep. 471. Montegut vs. Lent, 10 Rich. S Car. Rep. 135. Fink vs. Brigaldi, 4 Daly (N.Y.) 359; Harper vs. Commercial, etc., 15 La. Anl. Reports, 136, and Lapeyre vs. McCann, 28th La. Anl. 749.

OPINION.

The third opponent's claim to the ownership of the articles seized in this case by the plaintiffs is, by virtue of having become the owner of certain real estate, sold at sheriff's sale, under executory process, at the suit of holders of notes bearing mortgage upon the same. The properties sold belonged, some of them to W. C. Fulham, others to his son, W. F. Fulham. Some of the articles seized by L'Hote and Co. were at the time of the sheriff's sale in the houses belonging to the son, but all of them belonged to the father.

The properties were at the time of the sheriff's sale, under lease to different persons.

They are not before the court and the case is submitted to us freed from examination as to what their rights as lessees are or would be in the premises. The only parties before us are the third opponent and the seizing creditors, and the only issue raised and to be decided is one of ownership.

The rights of the third opponent are to be tested, by what he acquired at the sheriff's sale, made in enforcement of the two sets of mortgages.

We find nothing in the record which would estop either W. C. Fulham or his creditors from claiming the actual ownership to be in the former, if such was the actual fact.

The circumstance that the different properties were by consent sold separately from the others covered by the same mortgage, does not broaden the mortgage and make it include more on each separate property, than would have been included in it had the property mortgaged been sold in entirety as mortgaged, nor does the presence of W. C. Fulham at the sale cause any difference in the rights and obligations of parties from what they would have been had he been absent. If the purchaser at the sale obtained everything that the mortgage legally called for, he can have no grounds of complaint. The case is not one showing a sale of house "with all that is in it," and therefore Art. 480 of the Civil Code has no bearing upon the rights of parties.

Third opponent relies upon the provisions of Articles 468 and 469 of the Civil Code.

The first, Article 468, declares that "things which the owner of a tract of land has placed upon it for its services and improvement are immovable by destination. Thus, the following things are immovable by destination, when they have been placed by the owner for the service and improvement of a tract of land, to-wit: * * * "All such movables as the owner has attached permanently to the tenement or the building are likewise immovable by destination."

The second, Art. 469, declares that "the owner is supposed to have attached to his tenement or building forever such movables as are affixed to the same with plaster or mortar, or such as can not be taken off without being broken or injured, or without breaking or injuring the part of the building to which they are attached." The cabinet mantel pieces seized are movable beyond question, not being attached to the building.

The chandeliers and brackets placed in the houses of W. F. Fulham are also moveables, not having been placed therein by...