
    
      KLING vs. FISH
    
    Appeal from the court of the second district
    ⅛ au actioi. against the ies-see, the cause ⅛ not terminated ⅛ ⅛⅛ the lessor in war-««‘r-
   Porter, J.,

delivered the opinion of the court. I he plaintiff claimed of the defendant „, . a tract ot land, who pleaded that he held it as i c xxt i tt lessee ot Wade Hampton, and prayed to be dismissed from ihe suit The court refused the application on two grounds: First, be cause the defendant should ¡sot only have named his lessor, but have cited him in wat - ranty: and. Second, because a citizen of tint, state was not obliged to follow the lessor in another stale.

This subject has been already before the Court,’ but the question of law arising out of it, did not receive a decision, in consequence of one of the judges having been of counsel in the cause, and another having at that trial, an interest in the deci-ion of the question.

It is one of some importance: the difficulty m deciding it, proceeds from the language used by the legislature in the provision which they have made for cases of this kind. The words of the Code are, “If the person by whom these acts of disturbance has been committed, pretends to have a right to the thing leased, or if the lessee is cited to appear before a court of justice, to answer the complaint of the persons thus claiming the whole, or a part of the thing leased, or claiming some species of services on the same, he shall call the lessor in warranty, and shall be dismissed, if he wish it, by naming the person under whose right he possesses.” Civil Code, 375, art. 25.

This article is taken verbatim from the 1727th of the Napoleon Code, and the true construction of it luis been a subject of discus-fion in France : one of their most eminent writers states, that the obligation to call the lessor in warranty, and the right to be dismissed on naming him to the plaintiff arc dispositions which at first blush appear to destroy each other; lor. if the lessee is to bo put out of court the moment, he names his lessor, he cannot be obliged to cite him in warranty, and, ifhe be obliged to cite him in warranty, it is not merely sufficient to name him to be put out of court. lie endeavors to reconcile these provisions, by supposing that the obligation to call the lessor, is only in relation to him and for his benefit; but that, as it respects the plaintiff it ss enough that the lessor is named, in order to stop the suit against the lessee. This construction is far from being satisfactory; more particularly, ¡Í it be true, as this writer contends, that the moment the lessor is named, suit must be abandoned or brought against him at his domicil, and that no judgment obtained against the lessee would affect the right of the person tinder whom he holds. If such be the consequence.it is not readily seen what interest the lessor has to be cited in warranty * he can neither be affected by the judgment, nor compelled to discuss his right before the tribunal which renders it. Faille?s note on 1727th art. Code Mapolean.

But the difficulty, in arriving at the true meaning of this article in France, arises in a great measure from the ancient law of that country being; that on naming the lessor, the lessee was put hors de cause. The obligation to call the lessor in warranty, is an entirely new provision, and the rules of construction require them to interpret it in relation to the former jurisprudence, and to give both effect if possible. It adds to their embarrassment there, that the new law cannot be considered as a repeal of the old, unless the provisions are so incompatible, that the one cannot stand with the other.

But no such difficulty arises with us in construing this enactment; for, our ancient law contained no such provision as the French, and it is in relation to the former that the statute must be interpreted; as in the case of Cottin vs. Cottin, the words viable were ascertained by reference to the Spanish jurispru» dence, not bj that of France, from whose last code we had taken the article, under which the contest in that case arose. 5 Martin, 93.

By the 29th law of the 2d title of the 3d Partida, it is provided, that he who wishes to sue for the possession, or property of a thing, must bring his action against the person who has it in possession; and that the latter ought to defend the suit, unless he held it in the name of another. That then he ought to make known to the judge the name of the person for whom he held it, and ask for time to inform him of the suit, that he may come forward and make his defence; and that if he should not come, the judge ought to take the plaintiff’s oath that he had not instituted the suit with evil intentions or motives, and thereon put him in possession of the thing claimed : which judgment forms the res judicata as to the possession, but leaves the right of property open for discussion.

By this law it is clear, that the suit did not cease by the lessee naming the lessor; that, on the contrary, it was the duty of the latter to appear in that court, and in that cause, and defend his lessee’s Tight, otherwise he lost the possession by a judgment rendered against the lessee.

Let us now see, whether this provision be repealed, and what is the true construction of the article of our Code in reference to it

Our Code declares, that the lessee shall cal! the lessor in warranty, and shall be dismissed if he wishes it, by naming the person under whose right he possesses.

Now, according to the strictest rules of construction, and following the very letter of the law, the lessee is compelled to call the lessor in warranty : if he be, the natural inquiry is, for what purpose ? The answer must be, for none, if the suit is to terminate by the lessee naming his lessor; but, a construction which brings us to the conclusion, that there was positive legislation for no purpose, cannot be adopted. Lex ncminem cogit ad vana.

That purpose, however, is an important one, if we assume the law to mean, that the cause is to continue, and be contested with the party cited in warranty; and such construction is recommended to us by' the consideration that, by adopting it, we suppose Ac legislature meant something. it is recommended to us, by the obedience which we are compelled to give to another cardinal rule of construction, namely, to interpret laws so that every part of them shall, if possible, have effect. But, if we say, that the lessee is to be put hors dc cause, and the suit dismissed, the moment he names his lessor, then the obligation to call the latter in warranty is vain and useless : if, on the contrary, we say that he must call the lessor in warranty, and that upon his appearing, the lessee shall be dismissed, we give both clauses effect; we make our new law harmonize with the old, and we promote the ends of justice. For, can it be believed, the legislature contemplated, that citizens of other states could come into ours, grant leases of our lands, and by enabling these lessees to set up title under them, compel us to follow the lessor and try our land titles in one of our sister states, or in a foreign country. It would surely require a very clear expression of legislative will, to enable the court to come to such a lamentable conclusion: it would put the whole landed property oi the country in the power of strangers; and it is not difficult to believe, that such a privb lege would soon be generally used, and for the most iniquitous purposes.

But, without putting the construction we adopt under the protection of the argument ab inconvenienli, enough is found in the law itself, to support the conclusion that the lessor must be cited in warranty; and this necessarily supposes the cause to continue, for if it were to terminate by the lessor’s being named, no such citation could be made.

ff he does not appear when cited, the law already quoted, affords an equitable relief to the plaintiff by giving him possession, and leaving the question of title untouched.

If it be contended, that compelling the lessor to appear where the land is situated. might be a violation of the law which prohibits a man from being sued out of his parish. The reply would perhaps be, that it is very doubtful if this be any more a violation of the rule, than that of the vendor being cited io warranty by his vendee: in both instances, it might be urged, the action is against the party in possession, and he who puts him there may become a party to the suit or not, at his option. But that question does not arise here. It may be possible that the lespr, if a resident of the state,, can, plead the exception; but the right ta--do.;.so, is. quite ^distinct from the obligation, of the lessee, to cite him ⅛‘-warranty, before .Ke.can.be dismissed.

JYicholk. for the. plaintiff Porter for the defendant.

The judgment of the district court is confined tothp possession, and.leaves the question of title untouched;; we think; on the evidence produced, it is correct, and do therefore ..order, adjudge and decree, that it be affirmed ■'with-costs;  