
    Montecon v. Faures et al.
    A stipulation that a lessee shall not sub-lot the premises without the written assent of the lessor, is for the exclusive benefit of the latter, and if he does not .take advantage of it, no one else can.
    from the First District Court of New Orleans, McHenry, J.
    
      Preaux, for the appellant.
    
      Barthe, .for the defendants.
   The judgment of the court was pronounced by

Rost, J.

This is an action for arrears of rent; and the plaintiff farther prays that the defendants be ousted from the premises, on tlie ground that they have violated the conditions of the .lease. The defendants deposited -in court the amount of rent due, and the monthly instalments which matured during the pending of the suit, but resisted the avoidance of the lease. The court below having given judgment for the rent and maintained the lease, the plaintiff-ttppealed.

The material facts of the case are as follows : In August, 1845, Egana leased a double tenement situated in the Second Municipality, to Jules Vaudry. It was a condition of the lease “that the lessee should not sub-lease the premises - without the written consent of the lessor, endorsed thereon. This lease was made for the term of twenty-six months. Vaudry entered into possession, and, in October following, sub-leased one of the tenements to Cam-panel, without the written consent of Egaña, for the term of one year, with the privilege of renewing for another year. Campanel occupied the premises till June, 1846, when he transferred his lease to Adele Pavajeau, who agreed to take his place and pay the rent .to Vaudry.. Adele Pavajeau went into immediate possession, and has occupied the tenement ever since, with the assent of Vaudry, who received the rent from her. In April, 1846, Vaudry transferred the unexpired term of the lease to the plaintiff, with the written assent of Egaña, and he bound himself to fulfill all the obligations of Vaudry towards the landlord. In September, 1846, Adele Pavajeau addressed a letter to the plaintiff, by which she notified Mm that she would avail herself of her privilege to renew the lease for another year. The plaintiff refused this application, and now resists her claim on the ground that the lease originally made to her was not made with the written .consent of Egaña, and was therefore void.

However this might be, if Egaña himself was the plaintiff in this suit, it is very clear that Monlecon has acquired nothing more than the rights of Vaudry and is bound by the sub-lease, which can in no respect be viewed as absolutely null. The nullity resulting from the prohibition in the original lease is for the .exclusive benefit of Egañaj and, if he does not avail himself of it, nobody else .can. The .evidence leaves no doubt in our minds that the plaintiff was fully .aware that Vaudry could deliver but .one of the tenements to Mm, and that the other was rented. He went to occupy .the vacant tenement without setting up .at the time any claim to the possession of the.other, and he could hardly have received rent for it, .as he did, .unless he had been apprised of the conditions of .the sub-lease. * Judgment affirmed!.  