The opinion of the Court was delivered by
Todd, J.
On the 6th of January, 1880, the plaintiffs leased a sugar plantation from John Gonzales & Co., an ordinary partnership, composed of John, Perico and Raphael Gonzales, joint owners of the plantation leased, eacli owning an undivided third of the same. The lease was for the term of two years, ending on the 31st December, 1881.
Among the stipulations of the contract was one to the effect that the lessors turned over to the lessees a lot of corn and hay then on the place, which the lessees were to return at the expiration of the term of the lease ; and they were also to leave on the plantation at that time seed cane enough to plant twenty arpents of land.
The lessees took possession of the plantation, and made a crop thereon the first year named (1880). In December of that year, the one-third interest of John Gonzales in the plantation was seized and sold, under a judgment obtained against him, and recorded in 1879. This interest was purchased at the sheriff’s sale by the defendant Klotz, who, on the same day, also bought, at private sale, the remaining interests in the property of the other proprietors — Perico and Raphael Gonzales. Klotz immediately went on the plantation, and took possession of the corn, hay and seed cane of the plaintiffs found there.
The plaintiffs then resorted to an injunction to restrain Klotz in his proceedings, and maintain themselves in possession during the residue of their lease, and claimed damages.
Klotz dissolved the injunction on bond, and continued in possession of the property.
Plaintiffs then filed an amended petition, in which was set out specifically the amount and character of the damages claimed.
The main items of these were :
[265]*265One hundred dollars for the hay.
Two hundred dollars for corn.
Five hundred dollars for seed cane.
Twelve hundred dollars for net profits on the crop of 1881, which, under the terms of their lease, they were entitled to make on the place, but of which right they were deprived by the illegal act of the defendant in taking possession of the leased premises.
There was an exception of no cause, which was overruled, and properly so.
This was neither a petitory nor possessory action, as charged in the exception filed, but substantially an action for damages, claimed to result from the unwarranted taking and conversion of the plaintiffs’ property, and the alleged violation of their legal rights. No clearer or graver cause of action could be asserted ; and whatever rights the lessees might have preferred against this lessor on account of the acts of Kioto complained of, there was under the allegations of this petition a distinct liability on his part.
'Phe case was tried by a jury — a jury being prayed for by the defendant.
When the case was called for trial, the defendant, through his counsel, offered to waive the jury, and have the cause determined by the judge. To this the plaintiffs’ counsel objected, and the objection was sustained by the judge.
This ruling forms a ground of complaint, which we find embodied in a bill of exceptions taken by the defendant’s counsel.
'Phe ruling was correct; the jury had been asked for by the defendant, the case had been put down as a jury case on the jury docket, the jury were in attendance to try the case. To have it thus tried under the order rendered was a right enjoyed by both parties to the suit, regardless of the question as to which party had applied for a jury, and being thus a jury case, the jury could only have been dispensed with by the request and consent of both parties.
The answer of the defendant, after the general issue, resisted the plaintiffs’ demands upon the ground that the defendant’s purchase at sheriff’s sale of the one-third interest of Jean Gonzales in the plantation, dissolved the lease as to the whole of it; and that under this purchase and the subsequent acquisition of the interests of the other proprietors as sole owner of the property, he had the right to take possession of it regardless of the lease, and a further right to appropriate the corn, hay and seed cane raised by the plaintiffs, and found on the place, siuce the same did not exceed the quantity of the like [266]*266product that the plaintiffs under the terms of the contract, were to leave on the premises at the expiration of the lease.
It was further alleged that there had been no proper record of the lease, the same not having been recorded in the book of conveyances, and that therefore was without legal effect.
It was further denied that the plaintiffs had a valid lease of the plantation, because the contract was made by one of the owners of the premises without the consent or authorization of the others.
Finally, it was averred that the defendant took possession of the plantation and the property thereon claimed in the suit with the consent of the plaintiffs.
I.
The purchase at sheriff’s sale of one-third of the plantation by the defendant did not dissolve the lease of the entire plantation, and render exigible, as contended by defendant, all the obligations of the lessees as fully as if the term of the lease had expired.
Granting that it dissolved tiie lease as to John Gonzales’s one-third of the land, it had no legal effect on the rights of the lessees to or upon the remaining two'-tliirds, not embraced in the seizure and sale.
The defendant, as owner of the one-third of the land under the adjudication, was entitled to take possession of the one undivided third of the plantation, but no more. He could acquire no greater right or title to the plantation, under his purchase, than John Gonzales, his judgment debtor, held.
He could have possessed himself of this interest, and if he chose, have cultivated the same ; but not so as to infringe upon the rights of the lessees over the remainder of the plantation. If this course did not suit him, or was deemed inconvenient or impracticable, he had the option to resort to a partition, and have his interest'segregated and made definite.
He had no more right to enter on the portion, or two-third interest of the plantation, under his purchase of the one-third, than a stranger would have had, and to this extent, and as relates to such portion, unaffected by his seizure and judicial sale, as stated, his attitude and conduct cannot be viewed otherwise than that of a trespasser. Becnel vs. Becnel, 23 Ann. 150; Balfour vs. Balfour, 33 Ann. 198; C. C. 2732, 2733.
Nor does the fact that he bought at private sale the remaining interests in the plantation about the same time from the other co-proprietors. justify or relieve his conduct, for they could only convey to' the defendant their interests subject to the lease. By this lease they [267]*267granted to .the lessees — plaintiffs herein — the right to occupy and cultivate the plantation to the extent of their interests, for another year.
II.
The question of the dissolution of the lease by the effect of the seizure and sale of a third of the leased premises, which we have discussed, bears on the liability of the defendant for the corn, hay, etc., that he converted to his use when he entered on the plantation.
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The opinion of the Court was delivered by
Todd, J.
On the 6th of January, 1880, the plaintiffs leased a sugar plantation from John Gonzales & Co., an ordinary partnership, composed of John, Perico and Raphael Gonzales, joint owners of the plantation leased, eacli owning an undivided third of the same. The lease was for the term of two years, ending on the 31st December, 1881.
Among the stipulations of the contract was one to the effect that the lessors turned over to the lessees a lot of corn and hay then on the place, which the lessees were to return at the expiration of the term of the lease ; and they were also to leave on the plantation at that time seed cane enough to plant twenty arpents of land.
The lessees took possession of the plantation, and made a crop thereon the first year named (1880). In December of that year, the one-third interest of John Gonzales in the plantation was seized and sold, under a judgment obtained against him, and recorded in 1879. This interest was purchased at the sheriff’s sale by the defendant Klotz, who, on the same day, also bought, at private sale, the remaining interests in the property of the other proprietors — Perico and Raphael Gonzales. Klotz immediately went on the plantation, and took possession of the corn, hay and seed cane of the plaintiffs found there.
The plaintiffs then resorted to an injunction to restrain Klotz in his proceedings, and maintain themselves in possession during the residue of their lease, and claimed damages.
Klotz dissolved the injunction on bond, and continued in possession of the property.
Plaintiffs then filed an amended petition, in which was set out specifically the amount and character of the damages claimed.
The main items of these were :
[265]*265One hundred dollars for the hay.
Two hundred dollars for corn.
Five hundred dollars for seed cane.
Twelve hundred dollars for net profits on the crop of 1881, which, under the terms of their lease, they were entitled to make on the place, but of which right they were deprived by the illegal act of the defendant in taking possession of the leased premises.
There was an exception of no cause, which was overruled, and properly so.
This was neither a petitory nor possessory action, as charged in the exception filed, but substantially an action for damages, claimed to result from the unwarranted taking and conversion of the plaintiffs’ property, and the alleged violation of their legal rights. No clearer or graver cause of action could be asserted ; and whatever rights the lessees might have preferred against this lessor on account of the acts of Kioto complained of, there was under the allegations of this petition a distinct liability on his part.
'Phe case was tried by a jury — a jury being prayed for by the defendant.
When the case was called for trial, the defendant, through his counsel, offered to waive the jury, and have the cause determined by the judge. To this the plaintiffs’ counsel objected, and the objection was sustained by the judge.
This ruling forms a ground of complaint, which we find embodied in a bill of exceptions taken by the defendant’s counsel.
'Phe ruling was correct; the jury had been asked for by the defendant, the case had been put down as a jury case on the jury docket, the jury were in attendance to try the case. To have it thus tried under the order rendered was a right enjoyed by both parties to the suit, regardless of the question as to which party had applied for a jury, and being thus a jury case, the jury could only have been dispensed with by the request and consent of both parties.
The answer of the defendant, after the general issue, resisted the plaintiffs’ demands upon the ground that the defendant’s purchase at sheriff’s sale of the one-third interest of Jean Gonzales in the plantation, dissolved the lease as to the whole of it; and that under this purchase and the subsequent acquisition of the interests of the other proprietors as sole owner of the property, he had the right to take possession of it regardless of the lease, and a further right to appropriate the corn, hay and seed cane raised by the plaintiffs, and found on the place, siuce the same did not exceed the quantity of the like [266]*266product that the plaintiffs under the terms of the contract, were to leave on the premises at the expiration of the lease.
It was further alleged that there had been no proper record of the lease, the same not having been recorded in the book of conveyances, and that therefore was without legal effect.
It was further denied that the plaintiffs had a valid lease of the plantation, because the contract was made by one of the owners of the premises without the consent or authorization of the others.
Finally, it was averred that the defendant took possession of the plantation and the property thereon claimed in the suit with the consent of the plaintiffs.
I.
The purchase at sheriff’s sale of one-third of the plantation by the defendant did not dissolve the lease of the entire plantation, and render exigible, as contended by defendant, all the obligations of the lessees as fully as if the term of the lease had expired.
Granting that it dissolved tiie lease as to John Gonzales’s one-third of the land, it had no legal effect on the rights of the lessees to or upon the remaining two'-tliirds, not embraced in the seizure and sale.
The defendant, as owner of the one-third of the land under the adjudication, was entitled to take possession of the one undivided third of the plantation, but no more. He could acquire no greater right or title to the plantation, under his purchase, than John Gonzales, his judgment debtor, held.
He could have possessed himself of this interest, and if he chose, have cultivated the same ; but not so as to infringe upon the rights of the lessees over the remainder of the plantation. If this course did not suit him, or was deemed inconvenient or impracticable, he had the option to resort to a partition, and have his interest'segregated and made definite.
He had no more right to enter on the portion, or two-third interest of the plantation, under his purchase of the one-third, than a stranger would have had, and to this extent, and as relates to such portion, unaffected by his seizure and judicial sale, as stated, his attitude and conduct cannot be viewed otherwise than that of a trespasser. Becnel vs. Becnel, 23 Ann. 150; Balfour vs. Balfour, 33 Ann. 198; C. C. 2732, 2733.
Nor does the fact that he bought at private sale the remaining interests in the plantation about the same time from the other co-proprietors. justify or relieve his conduct, for they could only convey to' the defendant their interests subject to the lease. By this lease they [267]*267granted to .the lessees — plaintiffs herein — the right to occupy and cultivate the plantation to the extent of their interests, for another year.
II.
The question of the dissolution of the lease by the effect of the seizure and sale of a third of the leased premises, which we have discussed, bears on the liability of the defendant for the corn, hay, etc., that he converted to his use when he entered on the plantation. His contention is, as above stated, was thatthe lease being dissolved by the seizure and sale referred to, and the lessees having bound .themselves to leave on the plantation, at the expiration of the lease, the same quantity of corn, hay and seed cane that they found there, and as these did not exceed the quantity the lessees found there at the beginning of the lease, that he had a right to keep them, and could not be held responsible for their value.
The conclusion we have announced touching this question of the dissolution of the lease by reason of the seizure and sale leferred to, leaves this contentien without force. The property mentioned converted to his use by the defendant, belonged to the lessees, and their right thereto was unaffected by the seizure and sale.
In the case of Porche vs. Bodin, 28 Ann. 761, presenting a similar state of facts with the instant case, we find in the opinion rendered the following language:
“ It is true Article 465 of R. C. C. says that standing crops are considered as immovable and as partof the land to which they are attached; and Article 466 declares that fruits of an immovable, gathered or procured, while it is under seizure, are considered as making part thereof and inure to the benefit of the person making the seizure. But the evident meaning of these articles is, where the crops belong to the owner of the plantation, they form part of the immovable. * * * A crop raised on leased premises forms in no sense part of the immovable. It belongs to the lessee and may be sold by him, whether it be gathered or not, and may be sold by his judgment creditors.”
See also the case of Sandel vs. Douglass, 27 Ann. 629.
In this case the growing crop of a lessee was seized, with the plantation, by a mortgage creditor of the owner, and there was no record of the lease, yet the Court held the seizing creditor liable to the lessee for the full value of the crop.
[268]*268m.
It is further contended that the plaintiffs possessed no valid lease, and if thejr did, that it was not properly recorded and was without effect.
The contract of lease was signed by one of the owners for himself and co-proprietors. It is claimed that the one signing had no authority from the others. The evidence satisfies us that, whether he had such authority or not, his act was fully ratified.
The contract of lease was duly deposited in the recorder’s office, and the required, indorsement to that effect was made upon it. It was recorded in the book kept by the officer for the recording of leases. Whether it should have been recorded in the book of conveyances, it is unnecessary to consider, since the deposit in the proper office, and the proper indorsement by the officer fully protected the parties. C. C. 2266, 2254, 2245; Payne vs. Pavy, 29 Ann. 116.
1AL
The liability of the defendant for corn, hay and seed cane taken l>y him being established, it remains to (letermine the value of the same. The evidence on this point is conflicting. The case was tried by a jury who, we presume, were thoroughly familiar with the subject of the value of these products, and after a close scrutiny of the evidence we are not satisfied that the estimate made by them, as shown by their verdict, should be disturbed.
Y.
There is a motion for an amendment of the judgment, by adding to the amount thereof the net profits that might have accrued from the cultivation of the place in 188.1, which the plaintiffs were prevented from working by the act of the defendant.
Granting that the net profits on a crop not 3ret begun or planted could form an element of damage in a suit of this kind, still w'e have failed, after an attentive consideration of the evidence bearing on this point, to roach any satisfactory conclusion as to the value of such profits, or even whether there would have been any profits at all. The amendment asked must, therefore, be disallowed.
This conclusion dispenses us from the consideration of the reconven - tional demand urged by the defendant.
Judgment affirmed.