
    (63 South. 93.)
    No. 19,574.
    CARROLL LUMBER CO., Limited, v. DAVIS (MONTGOMERY, Intervener). In re MONTGOMERY.
    (Feb. 3, 1913.
    On Rehearing, June 30, 1913.)
    
      (Syllabus by the Court.)
    
    1. Mechanics’ Liens (§ 192*) — Right to Lien — Improvements by Lessee.
    Where a lessee erects a building upon a lot of ground leased by him, the privilege in favor of contractors, laborers, materialmen, etc., exist only against the lease, and do not affect the owner of the lot of ground. Article 3249, Civ. Code.
    [Ed. Note. — For other cases, see Mechanics’ Liens, Cent. Dig. § 334; Dec. Dig, § Í92.*]
    2. Mechanics’ Liens (§ 192*) — Right to Lien — Improvements by Lessee.
    The contractor’s privilege attaches to constructions and works that have been erected on the leased premises under a contract with a lessee. Schwartz v. Saiter, 40 La. Ann. 264, 4 South. 77.
    [Ed. Note. — For other cases, see Mechanics’ Liens, Cent. Dig. § 334; Dec. Dig. § 192.*]
    3. Improvements (§§ 3, 4*) — Ownership — Reimbursement .
    When plantations, constructions, and works have been made by a third person, and with that person’s own material, the owner of the soil has the right to keep them or to compel such person to take away or demolish the same. If the owner keeps the works he, owes to the owner of the materials nothing but the reimbursement of their value and of the price of workmanship, without any regard to the .greater or less value which .the soil may have acquired thereby. Civ. Code, art. 508.
    [Ed. Note. — For other cases, see Improvements, Cent. Dig. §§ 2-4, 7-26; Dec. Dig. §§, 3, 4.*]
    4. Mechanics’ Liens (§ 198*) — Conflict of Privileges.
    “If the movables of the debtor are subject to the vendor’s privilege, or if there be a house or other works subjected to the privilege of other workmen who have constructed or repaired it or of the individuals who furnished the materials, the vendor, workmen, and furnishers of materials shall be paid from the price of the object affected in their favor, in preference to other privileged debts of the debtor, even funeral charges, except the charges for affixing seals, making inventories, and others which may have been necessary to procure the sale of the thing.” Civ. Code, art. 3267; Monrose v. Creditors, 2 Rob. 280; Lauve v. Creditors, 2 Rob. 527.
    [Ed. Note. — For other cases, see Mechanics’ Liens, Cent. Dig. §§ 348-355); Dee. Dig. § 198.*]
    5. Accord and Satisfaction (§ 1*) — Giving in Payment — Sales.
    The giving in payment is subject to all the rules which govern the ordinary contract of sale; but one of the differences is that the latter is perfect by the mere consent of the parties, even before the delivery, while the giving in payment is made only by delivery. Civ. Code, arts. 2656, 2658, 2659.
    [Ed. Note. — For other cases, see Accord and Satisfaction, Cent. Dig. §§ 1-13; Dec. Dig. § 1.*]
    
      (Additional SyTlahus ty Editorial Staff.)
    
    On Rehearing.
    6. Landlord and Tenant (§ 157*) — Improvements by Tenant — Delivery—What Constitutes.
    Where a lessee erected a.barn upon the leased land and agreed that the lessor could have same in payment of past due rent, this constituted a delivery to the lessor, under Civ. Code, art. 2478, specifying the delivery sufficient to constitute a completed sale, though the lease had not expired and the premises were still in the lessee’s possession; and a third person who furnished lumber to the lessee for the barn was then entitled to no privilege therefor against the barn.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§, 571, 572, 574-582, 584-600, 602-607; Dec. Dig. § 157.*]
    7. Landlord and Tenant (§ 157*) — Improvements by Tenants — Possession.
    Where a lease provides that any building erected on the leased premises by the lessee shall belong to the lessor, the lessee's possession of a building so erected is the possession of the lessor.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. S§ 571, 572, 574-582. 584-600, 602-607; Dee. Dig. § 157.*]
    8. Mechanics’ Liens (§ 198*) — Lessor’s Privileges — Priorities.
    Under Civ. Code, art. 3274, a lessor’s rig’ht of pledge and privilege will prevail over a materialman’s privilege for lumber furnished the lessee for the construction of a building upon the leased premises, where the latter, instead of being recorded within seven days, has not been recorded for more than a year after the material was furnished.
    [Ed. Note. — For other cases, see Mechanics’ Liens, Cent. Dig. §§ 348-355; Dec. Dig. § 198.*]
    Action by the Carroll Lumber Company, Limited, against D. F. Davis and Mrs. F. F. Montgomery, intervener. A judgment for intervener was reversed by the Court of Appeals, and intervener applies for certiorari or writ of review.
    Reversed, and judgment of district court reinstated.
    Snyder & Gilfoil, of Lake Providence, for applicant. Robert P. Kennedy, of Lake Providence, for respondent.
   SOMMERVILLE, J.

Plaintiff is a materialman, suing the defendant for the value of materials used in the building of a barn on the property or plantation of the intervener, Mrs. Field F. Montgomery, and for the recognition of a lien upon said barn. Plaintiff obtained judgment, and proceeded to advertise and sell the barn.

Mrs. Montgomery, the owner of the plantation upon which the barn was built, intervenes, alleging that she is the owner of the barn; that it is not the property of the defendant or subject to his debts; and that plaintiff has no lien thereon. She further alleges that the barn was built partly of materials belonging to her, obtained by the demolition of a barn which stood upon said plantation for many years, and partly of materials belonging to the defendant; and that upon defendant giving up the plantation, at the expiration of his lease in 1909, the said barn remained the property of intervener; and that it had been turned over by defendant to her on account of a large rent claim which she had against him for the rents of 1904 and succeeding years. In the alternative, in the event the court should hold the barn belongs to defendant,' she alleges that she has a claim against defendant for rent in excess of $2,500; and that she has a lessor’s lien upon said barn. She asks for judgment decreeing that the barn belongs to her; and, in the alternative, she asks that her lessor’s lien of $2,500 be recognized as priming that of plaintiff and all other persons.

The judgment of the Court of Appeals is in favor of plaintiff; and intervener asks that we review same.

The record is before us.

Intervener did not take the witness stand, and she offered no evidence whatever in support of the allegations contained in her petition. In the answer to the petition of intervention, interrogatories on facts and articles were propounded to intervener by plaintiff, and her answers thereto constitute the only evidence in the record in her behalf. When asked what portion of the lumber of the old barn went into the erection of the new barn, she answers that she does not know, as she was not on the place while the barn was being built. The testimony offered on behalf of plaintiff shows that the new barn was built entirely with materials belonging to the defendant, some of which he bought from plaintiff. It also shows that the new barn was built before the old barn was demolished. Intervener was not therefore primarily the owner of the new barn or any part theréof. The evidence further shows that defendant erected a small harness room to one side of the new barn, under a second contract with a builder, and that a very small portion of the material of the old barn was used in building the harness room; but that it is not a part of the barn. When asked as to the time of the building of the new barn or the destruction of the old one, she answers that she does not know, as she was not present and had nothing to do with the contract for the building of the barn. She was interrogated as to the lease, and she answered that there was no written contract of lease, but for most of the years that defendant leased the place he executed rent notes. But she does not offer the rent notes in evidence to prove the amount due. She answered that defendant had taken the plantation for an indefinite time, and had agreed to pay $2,250 per annum, except for the year 1909, when the rent was $2,500; that the rent had never been paid in full; and after three years a balance had been arbitrarily fixed at $1,000; that during the last four years no rent had been paid, except the taxes on the property amounting to about $500 a year; that “the allowance for the barn is to be credited on the balance due at the time it was turned over,” at which time defendant owed her $5,000 rent; and that when he gave the place up January 1, 1910, he owed her over $6,000. Yet in her petition she only asks that she be paid $2,500 for rent, by preference, out of the proceeds of the sale of the barn.

It is unnecessary to here determine the amount of rent which may be due intervener by defendant.

With reference to the transfer of the barn by defendant to intervener, the latter says:

“Both he (the lessee) and I had considered that the new barn was mine all the time.”

Again she says:

“After it had been some time built, in the latter part of 1908, defendant being largely in arrears on the rent due me; * * * I consented to giving him a credit on the rent claim for some of the expenses” (of building the barn).

This testimony is contradictory; it does, not prove the transfer of the title of the lessee, Davis, to the barn to the intervener. The mere crediting of the rent claim against defendant by what the intervener considered the value of the barn to her, or that intervener considered that the barn belonged to her all the time, is not sufficient proof of the giving in payment by a debtor to a creditor. There is not only no evidence of the transfer, but none of the forms of law necessary in such cases were complied with.

The intervener was not the owner of the barn at the time that plaintiff recorded its claim for material furnished to Davis for the erection of the barn.

We shall now consider plaintiff’s claim for recognition of its lien for materials furnished to defendant; and intervener’s claim that her lessor’s lien primes that of the materialman.

Article 3249, par. 3, C. C., gives to material-men liens and privileges upon the buildings for which materials were furnished; but not upon the lot of ground, when said lot belongs to another person.

“And if such building, improvement, or other work is caused to be erected by a lessee of a lot of ground, in that ease the privilege shall exist only against the lease and shall not affect the owner.”

In the case of Schwartz v. Saiter, 40 La. Ann. 270, 4 South. 80, we construe this last-quoted clause as follows:

“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 provision quoted, that the lease contemplated is one of property that is unimproved ; that the owner thereof shall not be affected by any construction subsequently erected thereon by the lessee, and which was not originally part of the ‘property under the 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 its 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 * * * as nothing applicable to it would remain.”

The lieu of plaintiff therefore attached to the barn while it was the property of plaintiff who had constructed it, and as the lien was recorded prior to the time that the barn passed into the possession of the intervener, on the final termination of the lease, it primes the lessor’s privilege for rent.

Intervener also complains that plaintiff’s bill for materials was not given in sufficient detail, and it was not shown that the material was all used in the construction of the barn. The bill filed in the record is in full detail, and the evidence for plaintiff shows that the material was used by the defendant in the erection of the barn referred to.

We fully concur with the Court of Appeals in its finding of facts and application of the law thereto.

It is therefore ordered, adjudged, and decreed that the judgment of the Court of Appeals is affirmed at the cost of relatrix.

On Rehearing.

PROVOSTY, J.

The plaintiff, the Carroll Lumber Company, sued the defendant, Davis, for the unpaid price of lumber sold to him, and caused the barn on the plantation of the intervener, Mrs. Montgomery, to be sequestered, on the theory that the building belonged to Davis, who had constructed it as lessee of the plantation, and that the lumber- had entered into the construction of it, and, as a consequence, the unpaid purchase price of the lumber was secured by a privilege on the building.

Mrs. Montgomery intervened, claiming ownership of the building; and, in the alternative, claiming a lessor’s privilege and right of pledge upon it, priming the alleged privilege of plaintiff.

The contest is exclusively between the plaintiff and the intervener. There is no dispute as to the facts. That plaintiff sold the lumber on a credit to Davis, and that it went into the building, and was never paid for, is proved by two witnesses, and is not contested by intervener, who simply says that she knows nothing about it. That intervener’s plantation was leased to Davis during the years 1903 to 1909, inclusive, at $2,500 for 1909, and $2,250 for each of the other years; that the barn was completed in 1908; that in the latter part of that year Davis gave it to Mrs. Montgomery in part payment of the arrears of the rent then amounting to at least $5,000; that on the 1st of January, 1910, he owed over $6,000 for rent—all this is testified to by Mrs. Montgomery in answer to interrogatories on facts and articles, and is not contradicted by any one.

Mrs. Montgomery was under the impression that this barn had been constructed in part out of the materials from another barn torn down on the place; but she does not pretend to have known this of her own knowledge.

To the question:

“What delivery of the barn was, made to you ?”

She answered:

“It was always on my land, and still is, and I do not see how it could be delivered to me any more than that.”

Nor do we. The only other way would have been to have moved the building from the plantation, or for the lessee to have removed from the plantation; and the law required nothing of that kind to be done. Just such a situation as this is contemplated by the Code:

“Art. 2478. The tradition or delivery of movable effects takes place either by their real tradition, or by the delivery of the keys of the buildings in which they are kept; or even by the bare consent of the parties, if the things cannot be transported at the time of sale, or if the purchaser had them already in his possession under another title.”

The possession which the lessee holds of leased property is a precarious possession. Legally speaking, it is not his own, but that of the lessor. True, if he erects a building on the leased premises, the building belongs to him, and not to the lessor, and is not covered by the lease; and his possession of it, therefore, is his own, and not that of the lessor. But the legal situation stands differently, if by agreement between him and the lessor the building is to belong to the lessor, and is to be covered by the lease. His possession of it, then, is that of the lessor.

The dation en paiement was therefore completed and made perfect by delivery.

Moreover, if the intervener’s claim of ownership were to fail, her alternative claim of a lessor’s right of pledge and privilege would have to prevail, for plaintiff’s privilege was not recorded for over a year after the lumber had been sold; whereas, in order to take precedence even of a mortgage, the law requires that it should have been recorded within seven days. C. C. 3274; Act 45, p. 59, of 1877; Bank of America v. Fortier, 27 La. Ann. 243; Givanovitch v. Hebrew Congregation, 36 La. Ann. 272; Marmillon v. Archinard, 24 La. Ann. 610.

The judgment of the Court of Appeals is therefore set aside, and that of the district court is reinstated and made the judgment of this court. Plaintiff to pay the costs of this court and of the Court of Appeals.  