
    (60 South. 22.)
    No. 19,363.
    HEARNE v. VICTORIA LUMBER CO., Limited. In re HEARNE.
    (May 20, 1912.
    On Rehearing, Nov. 4, 1912.)
    
      (Syllabus by the Court.)
    
    1. Mechanics’ Liens (§ 137*) —Building Erected on Land oe Another.
    Where a lot of ground belongs to A., and the edifice being erected thereon belongs to B., a lien for materials used in the construction of the edifice is properly inscribed in the name of the owner of the edifice. Civ. Code, art. 3249.
    [Ed. Note. — For other cases, see Mechanics’ Liens, Cent. Dig. §§ 225-233; Dee. Dig. § 137.*]
    On Rehearing.
    2. Mechanics’ Liens (§§ 184, 191, 197*)— Privilege oe Materialman.
    The materialman who has had his claim recorded is entitled to a privilege on the house, although it is situated on the land of another person than the builder. The owner of the house was the licensee of the owner of the land. The latter did not by selling the land put an end to the privilege on the former’s house. The business relations between the parties were substantially those of a lessee and tenant at will. If improvements are made by a lessee of the lot of ground, the privilege exists against the lease, and does not aifect the owner. Civil Code, art. 3249.
    [Ed. Note. — For other cases, see Mechanics’ Liens, Cent. Dig. §§ 374, 475-479, 489, 490; Dec. Dig. §§ 184, 191, 197.*]
    Action by F. M. Hearne against the Victoria Lumber Company, Limited. Judgment for defendant was affirmed in tbe Court of Appeal, and plaintiff applies for certiorari or writ of review.
    Writ denied.
    Alexander & Wilkinson, of Shreveport, for relator. Herndon & Herndon, of Shreveport, for respondents.
   SOMMERVILLE, J.

The original record in this case has been filed with us as ordered when the application for the writ of certiorari or review was made.

It shows that W. H. B. Croom agreed to sell lot No. 9 in the Croom subdivision of Mooringsport, La., to E. L. Munday; that Munday, before hie acquired title to the land, commenced to build a house on the lot. He appears to have met with some reverses, and Mr. Croom never made title to said lot to him. The Croom family subsequently sold the same lot for $200 to E. M. Hearne, the plaintiff in this cause, free from any inscriptions in their names. The house, not the lot, was subsequently held liable for a lien in favor of a furnisher of materials properly inscribed against Munday, the former owner of the house erected on lot No. 9. Plaintiff asks that the judgments of the district court and Court of Appeal against him and in favor of defendant be reviewed and reversed.'

Mr. Hearne claims in his petition filed here that he bought both the house and the lot from the Crooms; but this allegation is not sustained by the title deed. It shows that he simply bought “lot No. 9 of the Croom subdivision” without any reference whatever to the house which was being erected thereon by Mr. Munday. 1-Ie, Hearne, purchased this unfinished house from Munday. The record further shows that some material was bought by Munday from the Victoria Lumber Company, Limited, and was used by Munday in the construction of the house referred to; that the said lumber company recorded its itemized bill against Munday in the proper office, and that it subsequently sued Mun-day, and asked that the lien and privilege resulting from such recordation be recognized and enforced against the house, but not against the lot then belonging to plaintiff. There was judgment in favor of the lumber company, and against Munday, with recognition of its lien and privilege against the dwelling house on lot No. 9, etc., and “that this judgment have no effect beyond the value of the house above described.” The Victoria Lumber Company, Limited, proceeded to seize and offer for sale the house upon which, its lien rqsted, when E. M. Hearne, the present owner of the house and lot, instituted this proceeding, and asked that an injunction issue to prevent the sale of said house. There was judgment dismissing his suit.

E. M. Hearne now complains to this court that the judgment of the Court of Appeal, affirming the judgment of the trial court, is erroneous, in that it recognizes and maintains a lien registered against E. L. Munday, who was never the owner of the lot or house in qviestion, and- which was not recorded against the Crooms, his vendors, who were the owners of the lot at the time the lien was recorded against Munday. We have seen that the judgment referred to does not recognize any lien or privilege in favor of defendant as bearing upon the lot owned by plaintiff, which he acquired from the Crooms. The lien is recognized by the judgment as bearing upon the house, which the record shows belonged to Munday, and against whom the inscription of the bill for materials had been duly recorded. Munday was the owner of the building, he bought the material therefor, and the inscription was properly made in his name and against his property. Article 3249 of the Civil Code, in part, provides that the materialman shall have a privilege upon the immovables for materials supplied to the owner, when said materials have been used in the erection or repair of an edifice or other works on said immovable. And that:

“The above-named parties shall have, a lien and privilege upon the building', improvements or other works erected, and upon the lot of ground not exceeding one acre, upon which the building, improvement or other work shall be erected; provided, that such lot of ground belongs to the person having such building, improvement or other work erected,” etc.

The Crooms, who owned the lot of ground upon which Mr. Munday was erecting the house referred to, fall within the provision just quoted from article 3249 of the Code; and the lien and privilege recorded against Mr. Munday and the house owned by him do not operate upon the lot of ground which was owned by the Grooms, and defendant has not sought to proceed against the lot. It was proceeding only against the house which was owned by Munday, and against which it had a recorded lien before plaintiff bought from Munday.

The rule nisi which was ordered in this case is now recalled, and the application for the writ is denied at the cost of the applicant.

On Rehearing.

BREAUX, C. J.

Plaintiff, Hearne, owner of lot No. 9 of thq Croom subdivision of the town of Mooringsport, sued out an injunction to restrain the Victoria Lumber Company from seizing the above-mentioned lot and the improvements thereon. He claims to own the lot and dwelling thereon by purchase from W. H. E. Croom in July, 1907, from which date his possession begun.

In the deed of sale of lot No. 9, under which Croom holds, no mention is made of the improvements conveyed with the lot.

Plaintiff alleged substantially in his petition for an injunction that if the Victoria Lumber Company, Limited, has a privilege on the dwelling on lot No. 9, it does not affect his title as to third persons as it was not properly registered; that the property, if sold at all, should not be sold separate and apart from the lot on which it was constructed. These are the only grounds.

It appears that the Victoria Lumber Company obtained a judgment against Munday, who bought lumber from the Victoria Lumber Company to build a house- on lot No. 9. The claim for this lumber, defendant contends, was secured by privilege. This claim, however, was recorded only against Munday. That was before the sale by Croom to Hearne. Croom was always the owner. Munday constructed the house on the lot with the consent of Croom.

As to this judgment - Hearne alleges that the proceedings of the Victoria Lumber Company are null and void because this judgment was rendered against a nonresident and without -authorizing the seizure of any property; that the court was without jurisdiction and without right to render the judgment. The ground of nullity on account of the alleged illegal service is abandoned.

The defendant alleged in answer to plaintiff’s demand that it obtained a judgment against F. L. Munday with recognition of its lien for the lumber sold; that it was recorded prior to the sale of the lot by Croom to Hearne; that Hearne knew all about the lien before he became the owner of the lot; that the house thereon did not belong to Croom, I-Iearne’s vendor.

The judge of the district court rendered judgment recognizing the Victoria Lumber Company’s right to seize and sell the property, including the house, the latter to be sold separate and apart from the lot, but in the end the judgment limited the right to sell the house without the lot.

An appeal was taken by plaintiff to the Circuit Court of Appeal. That court did not reverse, but, on the contrary, affirmed, the judgment of the district court. Hearne then filed his application for a writ of certiorari.

In answer to the application respondent gave reasons why it should not be made perpetual by this court.

Relator has not asked for an amendment of the judgment.

The first question we will discuss is whether the improvements owned by Munday at the date of the sale affixed to the realty passed with the sale of the lot, which was sold without any mention of improvements thereon. None the less the sale of lot No. 9 included the improvements that had been constructed thereon. With the transfer of the land, the transfer of the improvements followed under the articles 464 and 506 of the Civil Code. The first article reads:

“Lands and buildings or other constructions affixed to the soil are immovable and form one property.”

The courts have repeatedly declared the owner is the owner of the building as between him and third persons. Article 498 of the Civil Code.

The owner has the right to keep them or compel their removal. Civil Code, art. 508; Gary v. Burguieres, 12 La. Ann. 227.

The land and improvements passed to plaintiff, Hearne, burdened with whatever lien there was on it. Those who have supplied the owner with material have a privilege if the forms of law are followed. They also have a privilege against the lessee, only, however, against the lease, and this does not affect the owner. Civil Code, art. 3249.

Another article (3272): Those who have supplied the owner or other person employed by the owner with material have a privilege, which they must have recorded.

While Munday was not the owner, he was in possession with the consent of the owner to a sufficient extent to enable him to erect the building on which defendant claims a privilege. He was_ to that extent a tenant at will.

A privilege can be placed of record against a lessee. It affects the right he had on the property. Croom could not acquire the property at the expense of Munday who constructed the house with his consent. Hearne, the plaintiff, knew that a privilege was claimed by the Victoria Lumber Company.

The pleadings do not raise the issue as to how the property should be proceeded against to collect the amount secured by the privilege. The whole question is privilege vel non.

We think that there was a privilege on the property as Munday, to say the least, was a tenant by sufferance, and for that reason we will not reverse the judgments of the district court and of the Court of Appeal.

It is therefore ordered, adjudged, and decreed that the writ nisi which issued in this case be recalled and discharged; that relator’s demand is denied, and his petition dismissed.  