
    The First Municipality v. Hall.
    Privileges exist only in those cases in which they have been expressly granted by law.
    ■To entitle aparty to the benefit of the privilege established by the Code in favor of architects, contractors, masons, workmen, and furnishers of materials, for the construction and repair of buildings, the amount due, or to become due, must be fixed in the .contract, where it exceeds five hundred dollars. C. ,C. 2737, 3239.
    APPEAL from the Fifth District Court of New Orleans, Buchanan. J. The plaintiffs obtained an order of seizure and sale, under a special mortgage granted to secure the payment of the price of certain lots of ground sold to the defendant. The amount duo to tins plaintiffs is §3,400, with interest at ten per cent, from the dates of the notes sued on, until paid. Before the property was sold, Moores filed his opposition, and .applied for a separate appraisement of the buildings and the lots of ground, on the allegation that ho was entitled to b.e ■paid in preference to the plaintiffs out.of the proceeds of the sale, under a building contract, to the amount of §3,321 81. The municipality denied that Moores had any privilege on the buildings and improvements on the lots; and averred specially, that if Moores had made .any advances, he has been fully reimbursed out .of the rents he has collected, &c. The contract between BLall and Moores, under which the latter sets up his claim to a privilege, js in the following words : “Agreement between Robert Moores .and T. B. Hall. T.D. Hall agrees to furnish the lot of ground situated at tire corner of Custom-hous.e and Franklin .streets, free of all .expense, for the term of ten years; and agrees jointly with Robert Moores to erect six one story tenements. The s.aid Robert Moores binds himself to erect the buildings .complete, and render bills at prime cost. 'The whole of,the expense of building, however, is not to exceed §4,000. When the buildings are completed, .each of the parties is to receive the rent in proportion ;to the amount he has put in the buildings. 'This agreement to last t.en years, .at the end of which time, T. D. Hall agrees to assume the whole of the buildings, by paying said Robert Moores the half,of what two disinterested persons iShall say they are worth, one of whom is to be appointed by each party; and in case of their not agreeing, they to call in a third. T. D. Hall, however, is Jo have the priyilege, at any time after the .completion of the buildings, to purchase Robert Moores' interest therein,, by paying said Moores the amount which h,e has invested in the buildings.
    Witness, ‘-‘[Signed]” “T.D. Hail,
    “Daniel B. Hindsdell.” “Robert Moores.
    This contract is without date; hut by reference to the certificate of the recorder of mortgages, it appears that it was acknowledged before J. Cuvillier, a notary public, on the 7th of May, 1842, and recorded on the 9th of the same month. Handble, a witness for the third opponent, proyes that the buildings were commenced in April, 1842-
    The erection of the buildings at tlje expense of Moores is not contested ; but his claim is resisted, on the ground that his contract with Hall was not a building contract, giving him a lien for his payment, but a lease and partnership, which gave him no privilege. The court bejow gave judgment agaiijst the opposition, ,nnd Moores has .appealed.
    
      
      Boselius, for fbe plaintiffs.
    The claim of Moores for a privilege tinder this pretended building contract, is unfounded. The agreement is destitute of every essential requisite for a building contract. There is not even a fixed or certain price stipulated. C. C. art. 2727.' It may perhaps be difficult to classify this contract, with strict legal accuracy; but it seems to present more of the features of a particular partnership, or joint undertaking, than of any other agreement. But even if it could be regarded as a building contract, it cannot avail against the municipality : 1st, because it is not dated, and it cannot, therefore, bo ascertained within what time it w.as recorded ; 2dly, because the evidences establishes that the buildings were commenced in April, from which it must be inferred that the agreement was passed during that month; and it was not recorded in the mortgage office, until the 9th of May ; the recording of it could therefore operate only as an ordinary mortgage, inferior to that of the municipality. C. C. art. 3241.
    
      Benjamin and Micou, for the appellant.
    The question is, whether the vendor can put an end to the lease of Moores, without paying for the buildings ? Hall certainly could not do so, and it would seem that his creditors could not exercise a greater power than himself. . The seizure and sale of the property must be considered as equivalent to the exercise of Ihe right reserved to Hall, to end the lease, by paying for the improvements. The vendor can do so, on terms more favorable to himself than Hall could do, as the vendor is bound to pay only the proportional share of the proceeds, .and Hall was bound to pay the whole demand of the builder; but it would se.ero unjust that the vendor, by the exercise of his privilege, should entirely exclude that of the builder. From the sale of the property, the partnership being dissolved, nothing remains in the contract but the builder’s privilege for re-imbursem,ent; which certainly stands, with all its consequences, as if no partnership had ever existed.
   The judgment of the court was pronounced by

Eustis, C. J.

Moores erected six tenements on a lot purchased by Hall from the plaintiffs, and mortgaged for the price, which was unpaid. It was agreed that Moores should retain the premises for ten years as lessee, the rents being in lieu of interest, according to the statement made in the opposition filed by Moores. He claims his privilege as a builder, for the improvements made on the lot by virtue of his contract. A separate appraisement was made, according to article 3235 of the Code, and the conflict is between the privilege asserted by Moores and the vendors’ mortgage, which has remained unsatisfied. Tho district judge dismissed the opposition of Moores, and he has appealed.

We think the district judge did not err. Privileges can be claimed only for those debts to which they are expressly attached by the Code. Art. 3153. The Code, in establishing privileges in favor of architects, contractors, masons, workmen, and those who furnish materials, contemplates that the amount due, or to become due them, should be fixed in the contract, when it exceeds $500. Arts. 2727, 3239.

In this respect the contract under consideration is radically defective; for it not only has no price fixed for the work, but provides for the contingency of the owner furnishing a portion of it, and his receiving a proportionate benefit. There are other obvious reasons for not allowing the privilege claimed by the appellant. Judgment affirmed.  