Moreira v. Schwan

37 So. 542, 113 La. 643, 1904 La. LEXIS 685

• Court: Supreme Court of Louisiana
• Decided: April 25, 1904
• Docket: No. 14,998
• Status: Published

Opinions

LAND, J.

The two plaintiffs, Mrs. Odille Moreira and her daughter, Miss Julia Moreira, and the defendant, William Schwan, own in indivisión a certain lot of ground, with a storehouse and other buildings thereon, situated in the parish of St. Mary. The parties own an undivided third interest each in said property.

The petition represents, in substance, that defendant has taken exclusive possession and control of said lot of ground, with the buildings and improvements thereon, and has by his illegal actions deprived plaintiffs of their interest in the common revenue derived from said property.

The petition further represents that in the year 1902 they, with the consent of the defendant, made a contract with Block & Levy, by which said parties agreed to lease said premises for one year at the rate $60 per month, with the privilege of renewal at an advanced rate of rental, but that said defendant, after first promising, refused to sign the contract of lease, which had been signed by plaintiffs; that said defendant refused to deliver said property to said lessees, and ever since maintained sole possession and control of the premises, conducting therein a mercantile business.

The petition charges that the illegal and unwarranted actions of defendant have deprived the plaintiffs of the use, possession, and control of their said property, and has damaged them as follows: .

Two-thirds of $60 per month for 12 months, amounting to the sum of $480; to attorneys’ fees incurred in maintaining their vested rights, $500; and to punitory damages, $1,000.

The prayer of the petition is that plaintiffs be decreed to be the owners in indivisión, in the proportion of one-third each, of the property described in the petition; that they be decreed to have the free use, possession, and control of the said property jointly with defendant; that the said defendant be ordered to restore to plaintiffs the free use, enjoyment, possession, and control of their said undivided interests in said property; and for judgment against defendant for the sum of $2,480 damages and costs.

Defendant filed an exception of no cause •of action, which was sustained; but a new trial was granted, and the exception was referred to the merits.

Defendant, for answer, pleaded the ge.n■eral issue, but admitted the joint ownership <of the property as alleged in the petition.

Defendant avers that he has been in possession of the premises in question since March 22, 1902, paying therefor $60 per month, to the knowledge of plaintiffs, and that the rent so paid had been enjoyed and used by the co-owners in indivisión in the ■conduct and working of a plantation owned by defendant and plaintiffs.

Defendant further avers that he had consented to the lease of the property in question, provided the lessee would purchase his stock of merchandise at original cost price, and that Block & Levy agreed to this condition, but subsequently refused to purchase said stock, on the grounds that the cost price was too high, and there was more goods in the store than they had anticipated.

Defendant prayed that plaintiffs’ demand be dismissed and rejected at their cost.

The cause was tried, and there was judgment in favor of defendant aá prayed for. •Plaintiffs appealed.

The property in dispute, the Germania Plantation and a brick building in Franklin, belonged to Valentine Schwan. On his death his estate passed to the parties to this litigation, to wit, Wm. Schwan, son, Mrs. Moreira, daughter, and Julia Moreira, granddaughter, of the decedent.

The defendant took charge of the property belonging to the estate, and has ever since, with the consent of the plaintiffs, been managing the plantation.

The store in question was leased by Valentine Schwan to one Duero, who subsequently became a bankrupt. Thereupon defendant, acting for himself and' as agent for his co-owners, leased the store to Migeot Bros, until January 1, 1903, with the privilege of renewal for three years, at a monthly rental of $60. It was stipulated that after 30 days’ notice the lessees should have the right to discontinue the lease, and in that event Wm. Schwan obligated himself to purchase their stock and fixtures on certain terms and conditions.

In November, 1901, plaintiffs brought suit to annul this lease as unauthorized, and to recover possession of the property and damages. It appears that this suit was compromised, Migeot Bros, abandoning possession to Wm. Schwan, who purchased their stock, etc., and agreed to pay the cost of the suit.

The co-owners then negotiated with Levy & Block in regard to the lease of the storehouse. The evidence shows that defendant’s consent to the lease was conditioned on the lessees’ purchasing his stock of merchandise. There was disagreement between defendant and Levy & Block as to the purchase, and the negotiations were abandoned.

Defendant remained-in possession of the store, and charged himself with the monthly rental of $60, which was used in paying the hire of laborers on the plantation.

This suit was filed in September, 1902. The joint ownership of the property is admitted. The evidence shows that the. rents of the property have been accounted for, having been expended for the common benefit.

Plaintiffs have not been injured. The case presented is one where the co-owners of property, cannot agree as to its administration, and it remains in the possession of one of them, who claims to have expended the rental value for the common benefit of the joint owners. •

Plaintiffs’ remedy is by suit for a partition and settlement of accounts, or for a division of profits, if any. Until the accounts be settled, the question of debt vel non between the owners in indivisión cannot be determined.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be affirmed, without prejudice to plaintiffs’ rights as co-owners in the premises; plaintiffs and appellants to pay costs of appeal.