
    No. 1282.
    Gleason & McManus v. The Sheriff et als.
    Where a creditor has acquired a privilege on movable property, by virtue of a seizure under Art. 723 of the Oodeof Practice, it cannot be defeated by the subsequent rendition of a judgment against the debtor, or the registry after tho seizure of another lien. This rule does not apply, where the property seized is affected in advan ce, with a special privilege or pledge in favor of a lessor upon goods on his premises at the time seizures are made.
    In a conflict for the proceeds of sales of property found upon leased premises, any legal evidence is admissible to prove the lessor’s claim for rent, and, when proved, the Jien attaches regardless of the action of other creditors against the property pledged.
    A judgment is prima facie evidence against third parties, unless direotly attaoked for fraud and collusion.
    A judgment, recognizing the lessor’s privilege on property, is defective, if it does not fiz the date at which the privilege attaches.
    Proof of occupation alone is insufficient to establish the relation of lessor and lessee.
    Appeal from the District Court, Parish of East Feliciana, Poney, J,
    
      W. F. Kernan, for plaintiffs.
    
      MoVea <& Hunter and Fuqua & Kilbourn, lor appellants.
   Ilslby, J.

Several of the creditors of John F. McGinn had issued executions in the judgments which they had respectively obtained against their debtor, and in virtue thereof the sheriff, on the 4th Deoeraber, I860, levied on a stock of goods.

Subsequently, on the 20th March, 1861, the plaintiffs, third opponents, caused to be stayed in the sheriff’s hands the proceeds of John F. Mc-Ginn’s stock of goods, out of which they claimed to be paid the amount due them, say six hundred and ninety-seven dollars, for which they held the lessor’s pledge, and claimed to be paid therefrom the amount due them by privilege and preference.

After trial in the court below, the claim of the third opponents was sustained according to the prayer of the petition, and the balance, if any. of the proceeds of sale, was ordered to be paid to the seizing creditors ir the order and rank of their seizures.

From this judgment the defendants have appealed.

A very careful examination of the record satisfies us that there is in error in the judgment of the District Court.

No objection seems to have beaL made to the introduction, as evidene< on the trial, of the opponent’s judgment against the common debtor, John E. McGinn, by which their privilege was recognized on the goods seized, by virtue of the.several fieri facias sued out by the defendants. This judgment, not having been attacked for fraud and collusion, is prima fade evidence against third parties. Judson v. Connolly, 5 A. 401. Fox v. Fox, 4 A. 135. 17 La. 205. 15 La. 59. Adams v. His Creditors, 14 La. 459. And there is no evidence in the record to disprove the validity of the opponents’ claim and privilege, which is superior to those of the seizing creditors.

It is therefore ordered, adjudged and decreed that the judgment of the District Court be affirmed, at the costs of the appellants.

Petition for a Rehearing, by appellants. — On the 4th December,' 1860, the appellants levied their executions on the stock of goods, the proceeds of which are in controversy. On that day, then, they acquired a privilege on the stock of goods for the payment of their judgments. Code of Practice, Art. 722. Even the bankruptcy of the judgment-debtor, if subsequently declared, could not defeat this privilege. Campbell v. His Creditors, 3 Rob. 106.

The rendition of another judgment against him, or the registry of another lien after that date, could not defeat it. Antognini v. Railey, 11 A. 275. Payne & Harrison v. Raerdon, 10 A. 349.

The appellants then had a special privilege fastened on these goods from and after the 4th December, 1860.

By what means is it sought to oust this fixed privilege? Solely by a judgment rendered on the 8th February, 1861; more than two months afterwards, in a suit brought seventeen days previous to judgment, or nearly two months after our special privilege was acquired by actual seizure under our judgments — a suitto which we were entire strangers — a suit which proceeded in hot haste, and evidently without contestation, if not by connivance, without any manner of notice to us, then known to be the only interested parties; and a judgment, which simply recognized a privilege without a date from which the privilege was to run.

What is the effect of this judgment rendered in a suit brought so long subsequent to the acquisition of our special piivilege?

If it were res judicata as to us, it could not bust our privilege, because it does not antedate it.

But it is not res judicata as to us. for we were strangers to it. The plaintiffs avoided making us parties, well knowing that if we were cited, no such judgment could be obtained.

As to us, this judgment, (introduced in evidence simply) only proves rem ipsam, that such a judgment was rendered at such a date. The privilege recognized by it, as to these strangers to the judgment, can only date from the rendition thereof, aud can in no view affect our acknowledged lien acquired two months before. It cannot fetroact to divest the already vested rights of third persons, strangers to the .judgment. Its terms and effect cannot be enlarged to their prejudice.

We are told it was not objected to as evidence. It could not have been objected to, for it was admissible to prove rem ipsnm, and that was all it was offered for, as will be shown presently. This Court cannot presume that it was offered for. illegal purposes, and therefore give it a greater effect than the law ascribes to it, viz: the effect of res judicata as to strangers, which is boldly claimed for it in so many words in the plaintiffs’ brief. “A record, or other paper, which is legal evidence of one fact and not of another, is never presumed to have been offered to establish what by law it could not; and though no exception be taken to ihe pan illegal, the exception may be made on appeal.” Breedlove v. Turner, 9 M. 380. Lartigue v. Baldwin, 5 M. 496. Amoat v. Russel, 1 N. S. 527.

Moreover, the appellees themselves, by their subsequent course iu proving up tlieir case, show that they had only offered the judgment to prove vein, ipsam; for they went on to introduce testimonial proof to establish a privilege antedating ours, viz: by introducing A. S. Norwood, H. Reinbarg and A. McKenna, (Rec. pp. 4 4J4) to show a contract of lease which would carry a lessor’s privilege back of our seizure, an attempt in which they utterly failed. Por they only proved an occupation without any contract of lease, or any fixed price of a house worth, they should think,"$10 or $12 per month, perhaps more! It was fully decided, in Jordan v. Meade, February 10th, 1867, and in Haughery v. Lee, 17 An. p. 22, and cases there cited, that no lessor’s privilege could flow from such a state of facts. If it could, a large part of the pretended claim was prescribed, although prescription was specially pleaded.

On Rehearing.

InsnEV, J.

This case is before us on a rehearing, and it is urged as the ground for the application, that the seizing creditors of John F. Mc-Ginn, having by virtue of Art. 722, O. P., acquired a privilege upon his stock of goods by their seizure of them, their lien so acquired cannot be defeated by the subsequent rendition of a judgment against their debtor, or the registry after the seizure of another lien.

This proposition, as a general rule, cannot be questioned; but can it be made applicable to a case where property is affected, in advance, with a special privilege or pledge, in favor of a lessor upon goods on his premises, at the time seizures by creditors of the lessee are made? This question carries with it its own answer? for, if it were otherwise, the security which the law accords to a lessor could at any time be defeated by any judgment-creditor of a tenant whose seizure was made first.

In a conflict for the proceeds of sales of property, found upon leased premises, any legal evidence suffices to prove a lessor’s claim for rent, and this proved, the special privilege attaches, regardless of the action of other creditors against the property pledged.

In our first decisipn we held, and properly, that judgments are prima facie evidence against third persons, unless they are directly attacked for fraud and collusion; (1 La. 377. 8 La. 199. 17 La. 205;) and that to put the party offering, to the proof of the facts upon which the judgment was rendered, fraud and collusion must be alleged. 8 La. 199. 14 La. 454. 13 La. 176. 4 A. 136.

On the trial of the opposition, made by the plaintiffs, the record of tlmir suit was in evidence, but it did not contain the evidence upon which judgment in their favor was rendered and their privilege recognized.

The. judgment is defective, in not showing at what date the lessor’s privilege attached, nor is it shown by other evidence. There is proof of the occupation by McGinn of the plaintiffs’ premises, at the time of, and and previous to, the defendants.’ seizures; but no contractoi lease is shown, nor any fixed price, which is essential to such-a contract, as we held in Haugherty v. Lee, 17 A. 22, and in Jordan v. Meade, 19 A. 101.

Upon a re-examination of the testimony, we do not think it sufficient to sustain the plaintiffs’ third opposition. We are, however, satisfied that the debtor, McGinn, occupied the opponents’ building previous to and when the goods were seized by the defendants, and as the former evidently attached too much weight to their judgment, and did not there*' fore adduce such other evidence as might, and probably would have shown a lease and pledge in their favor, we will, in the exercise of our discretion, (Art. 906, O. P.) and to serve the purposes of justice, remand the case to the court below for a new trial. , ■

It is therefore ordered, adjudged and decreed, that the judgment of the District Oourt be annulled, avoided and reversed. It is further ordered that the case be remanded for a new trial, and further proceedings according to law, the costs of appeal to be paid by the plaintiffs and appellees;  