PALMER, J.
Plaintiff is suing to recover of defendant R. E. Parker the sum of $784.51 with legal interest thereon from February 12, 1930, and in connection therewith, seeks judgment against him, and also against the other defendant
W.
M. Pollock for the recognition and enforcement of an alleged lien and privilege as furnisher of material and supplies, against the improvements erected by Parker upon the premises of Pollock, as well as the land on which said buildings and improvements were erected, as shown in the lease from Pollock to Parker.
Statement of Case.
On March 30, 1929, defendant W. M. Pollock entered into a contract of lease with defendant R. E. Parker for a term of ten years at a monthly rental of $10, covering a tract of land containing about twelve acres, situated near the town of Mansfield in De Soto parish. On this land there was situated a residence and some outhouses. The lease specifies that, in consideration of a reduced monthly rental, the lessee obligates himself to enlarge the dwelling house then situated upon the premises, build a garage, two chicken houses, and do certain fencing, and to paint or stain the houses and wire them for electricity and pipe them for gas, all at his expense. These improvements were to be made within two years from June 1, 1929. In addition to these improvements, the lessee further obligated himself, at his expense, and at his convenience, to build upon these premises laying houses, hatchery houses, brooder houses, feed houses, and a workhouse. Attached to the lease contract is a schedule of the cost and an itemized list of material that the lessee obligated himself to expend and use in the work before mentioned. The lease further provides that such improvements should become the property of the lessor at the expiration of the lease. The lease contract was duly filed and recorded in the office of the clerk of court in and for De Soto parish. Lessee made the improvements upon the dwelling house as specified in the lea'se contract, and, while living in the residence, in December, 1929, the dwelling was destroyed by fire. In some way Parker carried insurance on the dwelling in his name in the sum of $1,400 and collected the full amount of it after the fire.
Following the fire Parker erected a new dwelling upon the same premises, and bought certain of the material used therein from plaintiff. It is for the purchase price of this material that plaintiff is seeking in this suit to recover judgment and to have his lien as a furnisher of material and supplies recognized against the building and the premises on which the building is situated.
After the fire, although he appears to have taken no steps to have the dwelling insured in his name, or to have the insurance policy obtained by Parker assigned to him, Pollock did urge Parker to employ this fund in building a new dwelling in place of the one destroyed by fire. A short time after Parker had completed the new dwelling, he abandoned the premises and departed from the state.
On April 10, 1930, plaintiff filed its lien as a furnisher of material and supplies used in the erection of this dwelling, which was duly recorded in the proper records of De Soto parish. On the 18th of August, 1930,. plaintiff instituted this suit. Pollock instituted suit against Parker for six months’ rent,, or $60, and for cancellation of the lease. On the 9th of October, Pollock secured judgment against Parker for said amount, and for the dissolution of the lease and a recognition of his ownership of all the buildings and improvements on the premises, restoring to him the possession thereof, free and clear of all liens and incumbrances. Plaintiff was not a party to that suit.
In plaintiff’s petition, therefore, it seeks
to
recover judgment against Parker in the amount of its said bill, viz.: $734.51, with interest, and also a further judgment against both Parker and Pollock recognizing and enforcing plaintiff’s lien and privilege as fur-nisher of material and supplies against the property described in the lease from Pollock to Parker, and including the building in which the alleged material was used.
Pollock answered plaintiff’s demands with a general denial, except he admitted the lease from himself to Parker and the ownership of the property embraced therein. Pollock then sets up the defense that Parker, after having breached his obligations to pay the rents as they matured, and to make further additional permanent improvements, abandoned his lease and premises, leaving for parts unknown, and that he, Pollock, thereupon, in a proper legal proceeding, secured a dissolution and termination of the lease and also a further judgment recognizing him as the ownér of all buildings and improvements located upon the premises described in the lease.
Pollock further alleges that at the time of the execution of the lease, he had a dwelling house, garage, and other improvements upon said premises, of the value of about $800, which dwelling was remodeled by Parker, after which he moved into it, and that later the dwelling and improvements were destroyed by fire, and that Parker collected $1,-400 insurance carried on the said building; that Parker promised and agreed with him to build upon said premises a new dwelling house with the said insurance money; and that, after collecting the same, he built a dwelling house, now situated upon said premises, thereby replacing the one that had been destroyed by fire.
He further alleges that under the lease contract, at the termination thereof, all the improvements placed thereon by Parker would become his property without compensation to Parker, since the said improvements were to be a part of the rental Parker was to pay for the possession and use of said property.
Parker, appearing through a curator ad hoc, answered, entering a general denial.
Upon these issues the case went to trial, resulting in a judgment in favor of plaintiff and against R. E. Parker for the amount sued for, viz.: $734.51, together with legal interest at the rate of 5 per cent, per annum from February 12, 1930, until paid, with all •costs of the suit; and further decreeing that plaintiff have judgment against R. E. Parker and W. M. Pollock, recognizing and enforcing plaintiff’s lien and privilege as a furnisher of materials and supplies, as shown on plaintiff’s recorded claim, to the full extent of plaintiff’s claim against the dwelling house constructed by Parker and situated upon the premises embraced in the lease; and ordering the said building sold and plaintiff paid by preference and priority over all other persons out of the proceeds thereof. The judgment further decrees that plaintiff’s demands for a lien and privilege against the land of W. M. Pollock embraced in the lease on which the said building is erected, be rejected. From that judgment defendant W. M. Pollock has appealed, and plaintiff has answered the appeal, asking for an amendment of the judgment so as to extend its lien and privilege to cover the realty described in the lease, or in the alternative, to cover at least one acre upon which is situated the dwelling in question.
Opinion.
W. M. Pollock filed an exception of no cause of action, which was overruled by the district court. He appears to have abandoned the exception on appeal, since no argument, orally or by brief, is made in support of it.
Free access — add to your briefcase to read the full text and ask questions with AI
PALMER, J.
Plaintiff is suing to recover of defendant R. E. Parker the sum of $784.51 with legal interest thereon from February 12, 1930, and in connection therewith, seeks judgment against him, and also against the other defendant
W.
M. Pollock for the recognition and enforcement of an alleged lien and privilege as furnisher of material and supplies, against the improvements erected by Parker upon the premises of Pollock, as well as the land on which said buildings and improvements were erected, as shown in the lease from Pollock to Parker.
Statement of Case.
On March 30, 1929, defendant W. M. Pollock entered into a contract of lease with defendant R. E. Parker for a term of ten years at a monthly rental of $10, covering a tract of land containing about twelve acres, situated near the town of Mansfield in De Soto parish. On this land there was situated a residence and some outhouses. The lease specifies that, in consideration of a reduced monthly rental, the lessee obligates himself to enlarge the dwelling house then situated upon the premises, build a garage, two chicken houses, and do certain fencing, and to paint or stain the houses and wire them for electricity and pipe them for gas, all at his expense. These improvements were to be made within two years from June 1, 1929. In addition to these improvements, the lessee further obligated himself, at his expense, and at his convenience, to build upon these premises laying houses, hatchery houses, brooder houses, feed houses, and a workhouse. Attached to the lease contract is a schedule of the cost and an itemized list of material that the lessee obligated himself to expend and use in the work before mentioned. The lease further provides that such improvements should become the property of the lessor at the expiration of the lease. The lease contract was duly filed and recorded in the office of the clerk of court in and for De Soto parish. Lessee made the improvements upon the dwelling house as specified in the lea'se contract, and, while living in the residence, in December, 1929, the dwelling was destroyed by fire. In some way Parker carried insurance on the dwelling in his name in the sum of $1,400 and collected the full amount of it after the fire.
Following the fire Parker erected a new dwelling upon the same premises, and bought certain of the material used therein from plaintiff. It is for the purchase price of this material that plaintiff is seeking in this suit to recover judgment and to have his lien as a furnisher of material and supplies recognized against the building and the premises on which the building is situated.
After the fire, although he appears to have taken no steps to have the dwelling insured in his name, or to have the insurance policy obtained by Parker assigned to him, Pollock did urge Parker to employ this fund in building a new dwelling in place of the one destroyed by fire. A short time after Parker had completed the new dwelling, he abandoned the premises and departed from the state.
On April 10, 1930, plaintiff filed its lien as a furnisher of material and supplies used in the erection of this dwelling, which was duly recorded in the proper records of De Soto parish. On the 18th of August, 1930,. plaintiff instituted this suit. Pollock instituted suit against Parker for six months’ rent,, or $60, and for cancellation of the lease. On the 9th of October, Pollock secured judgment against Parker for said amount, and for the dissolution of the lease and a recognition of his ownership of all the buildings and improvements on the premises, restoring to him the possession thereof, free and clear of all liens and incumbrances. Plaintiff was not a party to that suit.
In plaintiff’s petition, therefore, it seeks
to
recover judgment against Parker in the amount of its said bill, viz.: $734.51, with interest, and also a further judgment against both Parker and Pollock recognizing and enforcing plaintiff’s lien and privilege as fur-nisher of material and supplies against the property described in the lease from Pollock to Parker, and including the building in which the alleged material was used.
Pollock answered plaintiff’s demands with a general denial, except he admitted the lease from himself to Parker and the ownership of the property embraced therein. Pollock then sets up the defense that Parker, after having breached his obligations to pay the rents as they matured, and to make further additional permanent improvements, abandoned his lease and premises, leaving for parts unknown, and that he, Pollock, thereupon, in a proper legal proceeding, secured a dissolution and termination of the lease and also a further judgment recognizing him as the ownér of all buildings and improvements located upon the premises described in the lease.
Pollock further alleges that at the time of the execution of the lease, he had a dwelling house, garage, and other improvements upon said premises, of the value of about $800, which dwelling was remodeled by Parker, after which he moved into it, and that later the dwelling and improvements were destroyed by fire, and that Parker collected $1,-400 insurance carried on the said building; that Parker promised and agreed with him to build upon said premises a new dwelling house with the said insurance money; and that, after collecting the same, he built a dwelling house, now situated upon said premises, thereby replacing the one that had been destroyed by fire.
He further alleges that under the lease contract, at the termination thereof, all the improvements placed thereon by Parker would become his property without compensation to Parker, since the said improvements were to be a part of the rental Parker was to pay for the possession and use of said property.
Parker, appearing through a curator ad hoc, answered, entering a general denial.
Upon these issues the case went to trial, resulting in a judgment in favor of plaintiff and against R. E. Parker for the amount sued for, viz.: $734.51, together with legal interest at the rate of 5 per cent, per annum from February 12, 1930, until paid, with all •costs of the suit; and further decreeing that plaintiff have judgment against R. E. Parker and W. M. Pollock, recognizing and enforcing plaintiff’s lien and privilege as a furnisher of materials and supplies, as shown on plaintiff’s recorded claim, to the full extent of plaintiff’s claim against the dwelling house constructed by Parker and situated upon the premises embraced in the lease; and ordering the said building sold and plaintiff paid by preference and priority over all other persons out of the proceeds thereof. The judgment further decrees that plaintiff’s demands for a lien and privilege against the land of W. M. Pollock embraced in the lease on which the said building is erected, be rejected. From that judgment defendant W. M. Pollock has appealed, and plaintiff has answered the appeal, asking for an amendment of the judgment so as to extend its lien and privilege to cover the realty described in the lease, or in the alternative, to cover at least one acre upon which is situated the dwelling in question.
Opinion.
W. M. Pollock filed an exception of no cause of action, which was overruled by the district court. He appears to have abandoned the exception on appeal, since no argument, orally or by brief, is made in support of it.
The position of plaintiff is: (1) That under the lease from Pollock to Parker, Parker was absolutely bound as a part of the consideration of the lease, to erect buildings for the improvement of the lease premises, and that Pollock was as much interested in the building of the dwelling house in question as Parker and made demands on Parker for its erection, and that therefore Parker, in the erection of the dwelling place of the one burned, was nothing less than Pollock’s agent, and therefore Pollock is bound as much for the material used in that building as if he had made a direct contract with plaintiff for such material, and that its lien and privilege extends. to the land as well as the building, and (2) that even treating the contract as an ordinary lease, plaintiff would still have a lien and privilege on the buildings erected on the lease premises as well as against the lease itself, for the payment of the purchase price of the materials used in said building.
Defendant Pollock contends that this case is governed exclusively by the terms of section 11 of Act No. 298 of 1926, which reads as follows: “Where any work as hereinabove set forth, is done or buildings or other improvements made, where the person for whom the work is done or with whom the contract is made, or by whom the work is done, is not the owner of the land upon which the work is located, then he shall be subject to all the obligations that are made incumbent on the owner by this act, and the liens and privileges created and established by this act shall operate upon whatever right said person having the work done or doing the work may have to the use of the land as lessee; and said lien and privilege shall operate against the lease such person holds, if there is one, or if said work is caused to be erected by a mineral lessee, then the privilege shall exist against the mineral lease and whatever rights
the lessee may haye therein, thereon or thereto; provided, however, that the privileges hereby created shall not interfere with the lessor’s lien and privilege or his right to demand and recover occupancy of the leased premises in default of the payment of rent, or his right to sell the lease or right of occupancy under any judgment he may obtain against his lessee growing out of the lease; and in the case of such sale, the privileges herein created shall be restricted to the proceeds of sale, and shall not follow the property, the lease or the right of occupancy.”
Defendant Pollock further argues that Act No. 298 of 1926 supersedes all previous laws, including the provisions of the Civil Code, dealing with liens and privileges growing out of the construction of improvements on immovable property. He therefore contends that, when this statute is applied, the rights of plaintiff must be restricted solely to the original rights Parker had under the lease with Pollock, and that this law, properly interpreted, means that, at the termination of the lease, Parker’s rights to the land, as well as any rights and interest in and to the dwelling in question, would end, and that at the sanie time plaintiff’s rights, being circumscribed by the limits of Parker’s rights, in so far as the land and improvements are concerned, would also end; that since said lease has been terminated by judgment of the court, ending all of Parker’s rights and interests in and to the said premises, as well as to the said dwelling, that plaintiff’s rights therein have likewise terminated.
We think this case is to be settled upon a simple interpretation of law governing the facts, about which there is but little, if any, dispute. We disagree with plaintiff that the mere fact that Pollock repeatedly urged Parker to use the money he collected as insurance money on the dwelling destroyed by fire made Parker Pollock’s agent in the erection of the new building. In our view, under the contract between Pollock and Parker, they were clearly lessor and lessee, and their relationship at no time changed. Under the contract of lease Parker obligated himself to make certain repairs on the dwelling then upon the premises, but he did not bind himself to build a new residence if the old one should be destroyed' by fire. The fact that Pollock was interested in inducing Parker to use the insurance money to build another dwelling, a situation not covered at all in the contract, did not change, in any manner, the fact that Pollock continued lessor and Parker lessee under the written agreement. It is our view of the situation, therefore, that plaintiff’s rights in the premises are to be interpreted according to the meaning of section 11 of Act No. 298 of 1926, and such other laws as bear upon the question.
To ascertain the rights of plaintiff, it is necessary to determine what were the rights of Parker. Since he occupied these premises as lessee, we must look to the laws governing the rights of lessee for settlement of that question. Briefly the situation may be stated thus: If Parker, as lessee, was the owner of the building in question and was udder no contractual obligation to Pollock for the dwelling to become Pollock’s property at the termination of the lease, then Parker would be the owner of the dwelling at the termination of the lease.
Of course, if Parker agreed, as contended by Pollock, that at the termination of the lease all improvements he placed upon these premises would become the property of Pollock, then that agreement would settle the controversy. But Pollock is incorrect in making that contention. True enough, the contract of lease does specify that the particular improvements which Parker obligated himself to place upon these premises, in view of the reduced rental which Pollock agreed to take, would, at the termination of the lease, become the property of Pollock, but that stipulation covers only such improvements as Parker obligated himself to make under the terms of the lease contract. As stated before, the building erected by Parker after the Pollock dwelling had burned, was not done by Parker in pursuance to any obligation he had assumed under the lease contract. Parker, in the erection of that building, did it under his rights as lessee, and under which he was the owner of that building with the right to remove the same at his expense at the termination of the lease. The mere burning of Pollock’s dwelling, which was upon these leased premises when Parker took possession of them, without fault on Parker’s part, did not obligate Parker to replace the dwelling. In the case of Schwartz v. Saiter, 40 La. Ann. 271, 4 So. 77, 80, in considering a case in which a dwelling burned while occupied by the lessee and a new one erected by him, and, in further considering the obligations of the lessee in connection therewith, as well as the rights of the fur-nisher of materials used therein, in construing article 8249 of the Civil Code, governing liens of furnishers of material, which is very similar to section 11 of Act No. 298 of 1926, the Supreme Court said:
“But the 3249th article of the Revised Civil Code contains a provision not found in the corresponding article of the Code of 1825. It is in these words, viz.:
“ ‘The above-named parties, i. e., architects, contractors, etc., shall have a lien and privilege upon the building, improvement, or other work erected, etc.,
*
* *■ and if such building, improvement, or other work is caused to be erected by a lessee of the lot of ground, in that case the privilege shall exist only against the lease, and shall not affect the owner.’
“We are not aware of any decision of this court that has ever given an interpretation of this article, but it is reasonable to infer from the provisions Quoted that the lease contemplated is one of property that is unimproved ; that the owner thereof shall not he affected by any construction subsequently erected thereon by the lessee, and which was not originally part of the ‘property under lease;’ and that the contractor who erected it has a privilege thereon as an integral part of the ‘lease.’
“Antecedent to the revision of the Code in 1870, the contractor had no such privilege. It is not awarded against the lessee, but against the lease. The quoted paragraph declares that it shall not affect the owner.
“The employment of these terms clearly indicates the purpose and object to be that the construction forms a part of the lease, and that the privilege of the contractor attaches to it. In this manner it could be made effective. But should it be held that such a construction or work became the property of the lessor of the lot of ground, free of the contractor’s lien, it would be deprived of all force and efficacy, as nothing applicable to it would remain.
“There is a provision in the contract of lease to the effect that at the termination of the lease all the repairs and improvements made by the lessee shall become the property of the lessor; but that ‘the buildings and constructions put upon the property shall belong to the lessee,’ etc.
“It is therefore obvious that if the constructions under consideration had been intended or designed to replace those lost and destroyed by fire, the lessee would have a seizable interest in them; hence we must conclude that inasmuch as the loss by fire was not occasioned by Saiter’s fault or neglect, and as he was not bound to make their replacement, Schwartz’s seizure was justified, and must be maintained to that extent.
“Schwartz’s judgment covers all the property that is mentioned in the itemized account, as having been either constructed or repaired; but we are of the opinion that it should be restricted to the constructions that were made in replacement of those which were destroyed by fire.”
Schwartz was suing Saiter as lessee for enforcement of his lien as furnisher of material used by Saiter in the erection of a building on the leased premises.
Of course, the lessee, at the termination of the lease, has no further claims upon the ground on which the improvements are erect.ed, that is, he cannot force the lessor to let his building remain upon the lessor’s land and retain his ownership of it. The lessee must demolish such buildings at his expense or abandon them to the lessor. It is contended by plaintiff that, under defendant’s theory, this case would be governed by Oiv. Code, art. 508, under the terms of which Pollock would have the right to keep the improvements by paying for them, and that, acting upon his rights under that article, he elected to keep the dwelling in question and hence is bound to Parker, therefor, and, if bound to Parker, then to his creditors who furnished the materials used in the erection of the dwelling, to pay for such materials and supplies. That article provides: “When plantations, constructions and works have been made by a third person, and with such person’s own materials, the owner of the soil has a right’ to keep them or to compel this person to take away or demolish the same.”
In our view, the provisions of this article do not apply without modification in this case, since the dwelling in question was placed upon the premises by a lessee. We are here dealing with the respective rights of a lessor and a lessee which, in matters such as we are now considering, are primarily governed by article 2726 of the Civil Code. That article provides:
“The lessee has a right to remove the improvements and additions which he has made to the thing let, provided he leaves it in the state in which he received it.
“But if these additions be made with lime and cement, the lessor may retain them, on paying a fair price.”
See, also, Talley v. Alexander, 10 La. Ann. 627.
Since, under the terms of the lease contract between Pollock and Parker, only such improvements were to become Pollock’s at the termination of the lease as Parker obligated himself to make upon the leased premises, and since Parker was under no obligation to replace the Pollock building that burned, as there is not the slightest intimation that the fire was caused by the fault of Parker, then the dwelling in question falls under that category of improvements made by a lessee who has the right to remove them at the termination of the lease.
In this case we must consider the rights of plaintiff independently of the judgment rendered in Pollock’s favor' and against Parker, terminating the lease and decreeing Pollock the owner of the dwelling in question. For the purpose of the case, we shall treat the rights of Pollock and Parker as they existed prior to that judgment.
Under such circumstances, Parker unquestionably had the right to remove the dwelling in question. It is also equally certain that Pollock is not bound to keep the dwelling and pay for it.
In passing on this identical question, our Supreme Court, in the case of Peeoul v. Auge, 18 La. Ann. 615, said:
“By article 2697 C. C. [now article 2726],
the lessee has the absolute right to remove improvements and additions made by him on the thing let, provided he leaves it in the state in which he received it.
“He is not obliged to take for them an equivalent in money; nor is the lessor bound to keep and pay for them. He may do this, when the additions have been made with lime and cement.”
Counsel for defendant Pollock contends that, in the case of Jackson Homestead Ass’n v. Zimmer, 16 La. App. 647, 134 So. 126, the Orleans Court of Appeal has interpreted section 11 of Act No. 298 of 1926 favorable to their position in this case, which is, that the rights of plaintiff in this case are limited to the rights of Parker, and that, under this provision of the law, Parker lost all his rights to the dwelling when Pollock, by a judgment of the court, secured a dissolution of the lease contract. In that case the court said: “All that was intended by Act No. 298 of 1926, § 11, was to give the furnisher of materials the right to a lien effective only to the extent of the right of the tenant or lessee of the property, where person for whom work is done or with whom contract is made is not owner of land.”
We are quite ready to accept and adopt these conclusions as our own. We have already said that the rights of plaintiff in this case were limited to the original rights Parker had, and since we have already concluded that Parker was the owner of the building at the termination of the lease, and had the right to remove it, then likewise plaintiff has the right to enforce its lien against this building as furnisher of materials and supplies used in its construction.
No citation of authorities is necessary to sustain the claim that a furnisher of material and supplies may enforce his lien which has been properly preserved against whatever rights a lessee may have in leased premises and against the buildings which the lessee has constructed thereon, and in which buildings such materials and supplies have been used in its erection. There are many such authorities, but the provisions of section 11 of Act No. 298 of 1926, creating such-a lien and privilege, are too clear and plain to admit of any controversy.
It is our view that the judgment of the lower court is correct, and it is accordingly affirmed, appellant to pay all costs of appeal.