
    Felicite Prieur, widow R. Lemonier v. J. N. Depouilly, Patrick Kirwin and M. J. Brenan.
    Where a contract of lease expressly excludes the right of sub-leasing, the premises cannot be leased without the consent of the lessor.
    It is not necessary that the lessor should take any notice of the contract of sub-lease, or seek to inter' fere with it any further than it interferes with his rights.
    Article 260P) of the Code prohibiting the lessee to sub-lease, is to be construed against the lessee.
    Where the lessee sub-leases, without the lessor’s consent, such sub-lease does not affect the lessor’s right against his immediate lessee, and the lessor cannot be compelled to resort to an action to rescind the lease, and may exercise his privilege on the property in the leased premises,
    from the Second Distinct Court of New Orleans, Lea, J.
    
      Bermudez, for plaintiff.
    
      Roselius, for Brenan, appellant.
    The following judgment was pronounced in the District Court, by
   Lea, J.

In this case the facts, as disclosed by the evidence, are correctly stated in the petition. On the 18th August, 1847, the plaintiff leased certain premises to Rouen & Depouilly, for the space of ten years, commencing on the 1st March. 1847, at an annual rent of $720, payable in equal monthly instalments of $60 per month. A special reservation was made in the lease, that no assignment or sub-lease should be made without the consent of the lessor. On the 23d May, 1849, an assignment, or transfer of the lease, was made with the consent of the lessor, to J. P. Eirwin, who assumed all the obligations in said lease contained, and promised to eompl/y with all its clauses, conditions amd stipulations. J. PT. Depouilly bound himself as surety, in solido, for Eirwin, for the payment of the rent and the fulfillment of the other obligations. In other words, Eirwin was considered as standing in the shoes of the former lessees. On the 22d May, 1852, Eirwin transferred the lease to M. J. Brenan, without the consent of the lessor, and this suit is brought for the rent alleged to be due and to become due, on the ground that Eirwin was removing part of the effects on which the lessor had a privilege, and for the cancellation of the sale and transfer of' the lease to Brenan. Eirwin and Depouilly, for answer, allege that they have no interest as defendants, the lease having been transferred to Brenam, who, for answer, pleads the general denial, alleging that he has paid the rent as it fell due, with the exception of that due for the last month prior to the institution of the suit, which rent was tendered by respondent and refused.

It appears to me that, considering the testimony of T. W. Gollins and A. Prieur, the plaintiff was justified in obtaining the seizure of the property, and to such a judgment as is* contemplated in proceedings had under the Act of 1839, p. 172.

The next question to be determined is, whether Eirwin had a right to substitute Brenam, as a tenant in his place, without the consent of the lessor. It appears to me that the terms of the contract expressly excluded any such right, and forbid the transfer.

It is not a sufficient answer to say that the lessor has nothing to do with the contract between EirwinXmd Brenam, and cannot, therefore, sue for its rescission. It is not necessary that the lessor should take any notice of the contract, or seek to interfere with it any further than it interferes with her rights; but she has a right to the enforcement of her own contract, according to its terms. Under that contract she reserved the right to choose her own tenant, and this right, though it may be exercised injuriously at times, is nevertheless very often essential to the preservation of property.

It is suggested that, according to the concluding clause of Article 2696, the prohibition to sub-lease, or transfer the lease, should be construed strictly against the lessor. The interpretation given to this clause by the Supreme Court, is directly the reverse of this. See 4th Annual, page 40. It appears to me that, under the contract, the plaintiff has a right to insist that Brenan shall cease to be her tenant, and that the transfer, so far as it affects her rights as lessor, be set aside; and further, that she has the right to enforce the contract with Kirwin, and that she cannot be compelled to resort to an action for the rescission or annullment of the lease.

I have not thought proper to notice the fact referred to by one of the counsel, viz: that Kirwin has made a surrender of his property. No such fact is set forth in the pleading, or shown by the evidence.

The Court having duly considered this case, for the reasons assigned in the written opinion this day delivered and on file, it is ordered, adjudged and decreed that the plaintiff, Felicité Fricar, have and recover against the defendants, J. P. Kirwin and J. K. Depouilly, in solido, for the sum of one hundred and eighty dollars for rent now due, with interest thereon, at the rate of five per cent, per annum on sixty dollars thereof from the 1st day of November, 1852, till paid; and on sixty dollars thereof from the 1st day of December, 1852, till paid; and on sixty dollars thereof from the 1st day of January, 1853, till paid; and for the further sum of three thousand dollars, payable in monthly instalments of sixty dollars each, commencing on the 1st day of February, 1853, and ending on the 1st day of March, 1857, with costs of suit, the whole with the privilege of lessor upon the property sequestered herein, with leave to said plaintiff to take out execution therein, from time to time, as said instalments shall respectively fall due.

It is further ordered that the transfer of the lease from Kirwin to Michael J. Brenan be avoided and set aside, so far as it affects the rights of the plaintiff herein, and that said plaintiff have judgment, decreeing that said Brenan be, and is not entitled to occupy said premises as tenant or sub-lessee of said Kirwin, or as holding said premises in virtue of any transfer from said Kirwin.

Slidell, C. J.

The reasons given by the District Judge for his judgment appear to us satisfactory.

As to the tender said to have been made by Brena/n, the lessor had a right to disregard it, Brena/n not being her tenant.

Judgment affirmed, with costs. 
      
       Campbell, J., absent.
     