Walker v. Dohan

39 La. Ann. 743

• Court: Supreme Court of Louisiana
• Decided: May 15, 1887
• Docket: No. 9825
• Status: Published

Opinions

The opinion of the Court was delivered by

Fenner, J.

The firm of C. E. McVean & Co. held a lease of a store-house in this city, which began on October 1, 1884, and ended on September 30, 1886. By the death of McYoan and the insolvency of cession of the firm, the present plaintiffs, in the capacities stated, became their'legal representatives.

. A judicial order was obtained in those proceedings for the sale of the following described property, to-wit:

“ The right of occupancy from day of sale to the 30th of September, 1886, of that certain store, situated at the southwest corner of Canal and St. Charles streets., said store having been lately occupied by C. E. McYean & Co., as a merchant tailor’s and gentlemen’s furnishing goods establishment.”

The property thus described in the order, the advertisements, and the proces verbal of sale, was adjudicated to defendant on January 19, 1886, as the last and highest bidder, at the price of fifty dollars, which was paid.

A few days afterwards, viz: on February 1, in the consolidated proceedings of the succession and insolvency, plaintiffs jointly representing that the rent of the store due and to become due was secured by the lessor’s privilege on the movables in the leased premises, which had been sold and the proceeds of which were then in their hands subject to said privilege, obtained an . order of court authorizing them to pay in full the amount of said rent to the lessor, viz: $3,750, which payment was made.

Immediately afterwards they brought the present suit, in which they claim from defendant, over and above the price of adjudication, the rent running under the original lease, from day of sale to end of lease, amounting to $3,150.

Defendant filed an exception of no cause of action, which was sustained by the judge a^guo.

A lease is defined by the Code as “ a synallagmatic contract, to which consent alone is sufficient, and by which one party gives to the „other the enjoyment of a thing at a fixed price.”

The contract embodies, in itself, reciprocal rights and obligations— the right of enjoyment and the obligation of paying the rent — which, so far as governed by the contract alone, coexist and adhere to each other. Hence, it has been repeatedly decided that the sale of the unexpired term of a lease, without qualification, is a sale of the lease for such term, as an entirety, including its obligations as well as its rights; or, in the language of the Court, that the bid for the lease in such a case, is a premium which the bidder is willing to give for the transfer of the lease to himself, with all its obligations, as well as all the rights thereto attached, from the moment of the adjudication.” Bartels vs. Creditors, 11 Ann. 433; D’Aquin vs. D’Armant, 14 id. 217; Brinton vs. Datas, 17 id. 174; Lehman vs. Dreyfus, 37 id. 587.

A reference to every one of these cases will show that the thing sold was the lease for its unexpired term.

But in the instant case, as appears from the statement given, the thing sold is not the lease, but simply the light of occupancy for a given term. In other words, the right is severed from the obligation, and is sold separately and apart. In the earliest of the above-quoted cases, the learned dissenters, Lea and Spofford, JJ., said : “ There are two ways of selling the unexpired term of a lease — one by selling it for a premium, subject to the payment of the rent to the landlord ; the other by selling or assigning the right of occupation without the assumption of the rent. The latter is the more frequent way of selling or assigning it, since it rarely happens that the unexpired term of a lease is worth a premium. The case of a sub-lease is a familiar illustration of one form of this latter mode of assignment. The sub-tenant has nothing to do with the original contract of a lease. He is bound only for the payment of the rent which he stipulates to pay as sub-lessee ; and whatever may be the rights of the landlord to cause the lease to be cancelled for non-payment of the rent by his tenant, he can in no case hold the sub-tenant liable for the payment of the rent under a contract to which he is not privy. Even the lessor’s privilege would not extend to the effects of the under-lessee, except so far as the later might be indebted to his principal tenant. C. C. 2676; 6 Rob. 294.” Bartells vs. Crs., 14 Ann. 437.

Nothing in the majority opinion conflicted with these plain propositions of law. The only point of difference was whether the sale of the unexpired term of a lease, es nomine, without express limitation, involved the transfer of the obligations with the rights, or of the latter alone.

Mr. Henneu, the author of the Digest, and one of the most acute legal minds of his day, in his note on these decisions, anticipated the very question which is now presented, saying : “ What forbids the severance of a right from its correlative obligation and the transfer of' the one without the other? The lessee’s right is to occupy the premises, his obligation to pay the rent. Can he not make a sale or donation of the right, retaining himself the obligation to pay the rent? It is true that the non-fulfilment might defeat the enjoyment by his vendee of the right transferred. But the transfer and severanee would be none the less possible and legal. * * * The lessor’s rights are not thereby affected.” 1 Hennen’s Dig., p. 803.

These suggestions admit of no answer conformable to reason, and the riglit and power of the lessee to transfer his right of occupancy separately from his obligation to pay the rent, though dependent as regards the lessor upon Ms compliance with that obligation, must be conceded, unless restrained by special contractual stipulations.

Indeed, this very case affords a conspicuous illustration of the necessity for the existence of such right and power. Here was a case where the rent due by the insolvent lessees for the entire term was abundantly secured by privilege on movables which had been sold and the proceeds held by plaintiffs subject to the lessor’s claim. ■ By virtue of this obligatory payment of the rent, plaintiffs were left with the right of occupancy which was, naturally, useless to them and worthless, unless they could sell it.

What should hinder them from selling it and realizing, for the benefit of the estates which they represented, whatever it would bring ?

They have exercised that right. They have severed the right of occupancy from the obligations of the lease, and have sold the former simply and alone. This is what the defendant purchased, according to the plain terms of the adjudication. She has not bought a lease or the unexpired term of a lease, and cannot be held for obligations which she never expressly or impliedly assumed.

Judgment affirmed.