Warfield v. Oliver

23 La. Ann. 612

• Court: Supreme Court of Louisiana
• Decided: July 15, 1871
• Docket: No. 230
• Status: Published

Opinion

Howe, J.

This was an action to enforce the obligations of a plantation lease executed by the defendant as lessee. A writ of sequestration was issued. There was a judgment in favor of plaintiffs, and defendant appealed

First — The defendant filed an exception to the prematurity of the action begun December 15, 1870, because a portion of the' claim for rent was not then due, and d d not become duo till December 31, 1870. On the eleventh of April, 1871, the exception was sustained, with leave, however, to amend, it appearing that the rent, nearly due when suit was begun, was now long past due, and the amendment was made and issue joined thereon. We see no error, but good sense and justice in this permission to amend. 4 An. 184; 17 La. 212. The case differs irom Catlett v. Heffner, lately decided.

Second — The defendant moved to dissolve the writ of sequestration on the grounds that there was no privilege for the claim of $5000 for the non-performance of the obligations of the lease (other than that to pay rent), the same being for damages unliquidated; that the claim for rent depended, by the terms of the lease, on a potestative condition, not yet fulfilled, and that the allegations in the affidavit were untrue. We think the motion was properly-overruled. As to the first ground, the lessor has, for the payment of his rent and other obligations of the lease, a right of pledge on the movable effects of the lessee which are found on the property leased. Rev. C. C. 2705. The “ other obligations” of this lease involved in this discussion sprung from Oliver’s agreement in that instrument to put the plantation in repair a.nd to keep it in repair. As will be seen by the evidence iu the record, this obligation was of great importance, and we see no reason to decide that it is not secured by the right of pledge above mentioned,

As for the second ground, it appears that by the lease the rent was fixed at six dollars per acre, and the exact number of acres was to be ascertained by “ survey.” This word “survey,” it is claimed, means the survey mentioned iu article 823 ei seg. Rev. C. C., and such a survey not having been made, the rent is not due. We do not suppose this argument is made with entire seriousness, or that we shall he expected to reply to it at great length. It seems clear that the survey here provided meant an accurate measurement, in order that the amount due might be made mathematically certain.

The last ground refers to the merits.

Third — Upon the merits, we are not prepared to say that there was error in the judgment. It was provided by the lease that the amount expended by tlie defendant in making certain improvements should be credited on the rent; hut the judge a qiio gave judgment for the rent, and compensated the claims of defendant for improvements made with the amount found due to plaintiffs for the non-performance of the other obligations of the lease. It may well be that the method adopted by the judge below was erroneous, but if the conclusion he reached was. accurate in amount, it being a money judgment merely, and both branches of the plaintiffs’ claim being privileged, the error of method would furnish no reason for a reversal. We are of opinion that the amount of the judgment is correct.

J udgment affirmed.