
    MRS. J. H. ELLIOTT VS SOPHIE WEINSHENK
    NOS. 6929 and 7360
    CHARLES F. CLAIBORNE, JUDGE.
    May 6th. 1918.
   CHARLES P. CLAIBORNE, JUDGE

The question involved in this case is the ownership of property seized for rent, and its liability to the lessor's privilege.

day Wilson and her husband John H, Elliott filed this suit July 6th, 1916; they alleged that on January 1916 Mrs. Elliott had leased to Sophie Weinshenk the house Ho. 3381 Prytania Street for a term commencing January 88th. 1916 and ending September 30th. 1916, for which the lessee furnished her eight notes, each for $65.00 payable on the first day of eaoh month, with the stipulation that should the lessee fail to pay the rent punctually, the rent for' the whole unexpired term should become due, and in case of suit, that |^ie lessee should pay attorney's fees of ten per cent upon the amount due and eight per cent per annum interest; that there was a balance due of $30.00 on the note due June 1st., and the note due July 1st. was unpaid, fty reason whereof the other three rent notes had become due, making a total amount due of $890.00 with - interest and attorney's fees; she further alleged that she had good reason to believe that her lessee would remove the furniture upon which she had a lessor's privilege and she prayed for a provisional selsure and for judgment recognising her privilege upon the property and effects in said premises contained.

The writ issued and the furniture was seised.

Luolle Weinshenk widow Evan B. Egbert intervened in the suit and alleged: that the Sheriff had seised in this case furniture and household effeots fully worth $500.00 belonging to her; that she was an undertenant of the defendant and was not indebted to her; that she was unable to advance the oosts of court and desired to avail herself of Act 166 of 1918 authoris ing litigants who are unable to pay costs to litigate without édvanoing costs; and she prayed for judgment releasing her property from seizure.

The plaintiff thereupon took a rule against the defendant and against the intervenor, in which she alleged that the furniture seized was in the Sheriff's warehouse and was deteriorating in value, and she prayed for an order to sell the same.

Defendant, Sophie Weinshenk^resisted the motion for sale. The intervenor, Lucille Weinshenk,for return to the rule alleged that it disclosed no cause or right of action; that she could not be proceeded against by rule, and that plaintiff could not proceed to the sale of her furniture before a final judgment

The rule was tried on July 20th. 1916 and taken under advisement.

On November 3th. 1916 the following order was entered on the bottom of the rule.

"The opposition thereto having been overruled October 13th. 1916, the Oivil Sheriff is ordered to proceed with the sale of the property seized herein".

"Signed" Porter Parker,

Judge.

Prom this order the Intervenor appealed suspensively. Her transcript has come up to this court under the No. 6929.

Thereupon the defendant Sophie Weinshenk filed a general denial; she admitted that she had signed the notes sued on, but denied having signed the lease.

The plaintifl answered the intervention. She admitted the seizure but denied all the other allegations of her invervenor. She further alleged that the' intervenor,Lucille Weinshenk is the daughter of the defendant Sophie Weinshenk; that Intervenor first rented the property 3321 Prytania Street from the plaintiff for the prupose of conducting a boarding-house with her mother; that she stated to plaintiff that the furniture to be placed in the property belonged to her mother, and■at ' .her suggestion the lease was changed and made in the name of ner mother; that the Intervenor and her mother have been jointly operating a boarding house In the leased premises from the date of the lease up to the time of the seizure; that the furniture claimed by intervenor is subject to the lessor's privilege; that the lease contains a prohibition against subleasing without the written consent of the lessor^ which was never given, and that the intervenor was aware of said clause.

There was judgment in favor of the plaintiff Mary Wilson wife of John Elliott and against the defendant Sophie Weinshenk, as paryed for, for $890.00 with interest and attorney's fees _ md lessor's privilege upon the property seized and ordering the sale of the same to pay the judgment; there was also judgment against the intervenor Lucille Weinshenk rejecting her demand.

From said judgment the defendant Sophie Weinshenk took a devolutive appeal, without bond, under the Act of 1918.

Lucille Weinshenk took a suspensive appeal^also without bond, under the provisions of the same act.

Their appeal comes up under the transcript No. 7360, which has been consolidated with the previous transcript No.6989.

The lease filed with the petition is only a copy. It is made by "Mrs. J. H. Elliott" to "Sophie Weinshenk" and contains a type-written copy of her signature in full.

The lease filed November 3rd. 1916, under sprayer for oyer, is made by "Mr. John H. Elliott" to "Mrs. S, Weinshenk".

It is signed "S. Weinshenk", and by "Edgar E. Smith Agt." The lease contains the following clause:

"The lessee binds herself xxx to make no Sub-lease, nor transfer said lease in whole or in part xxx without the written consent of the lessor." The notes are all signed "Sophie Weinshenk". It is immaterial in whose name the lease was made as Mr. & Mrs.. Elliott appear as plaintiffs.

On the trial of the case, the plaintiff offered in evi dence the lease filed November 3rd. 1916, and proved the signature by the testimony of Edgar E. Smith. Counsel for defendant objected "to the use of said lease as not being the lease upon // which the suit was filed and predicated.

The decision of the court overruling the objection was evidently correct. Under Article 175 of the Code of Praetioe, plalntlff had a right to sue upon the lease without producing the original or by simply annexing a copy; she was bound to produce the original only upon defendant's prayer for oyer^which she did more than a year before.the trial of the oase.

The defendant Mrs. Sophie Welnshenk did not testify herself, nor did any one in her'behalf and she offered no evldenoe. The judgment against her Is evidently correct.

From the view that ne have taken of this case, It Is Immaterial whether the furniture that was contained in the leased premises and which was seized herein belonged to the defendant, the lessee, or to the lntervenor.

Artlole 8707 (8677) of the Civil Code provides that the right of pledge of the lessor "affects not only the movables of the lessee and under-lessee, but also those belonging to third persons, when their goods are contained In the house or store, by their own oonsent, express or Implied."

In this case the lntervenor and her children lived In the leased premises with ner mother. She brought the furniture Into the house, and it was therefore In the house with her express consent.

But the lntervenor contends that her furniture was not liable because she occupied the premises as an under-tenant of her mother.

Article 8706 (8676) subjects the property of the under-tenant to the lessor’s privilege only In so far as the former "Is Indebted to the prlnlcpal lessee at the time when the proprietor chooses to exercise his right".

The lntervenor attempts to establish her relation of under-tenant to her mother by her testimony, as follows:

(ft) Do you ow£ any rent or any money to your mother?
(A) Yes, 1 do, since this came up.
(ft) Do you owe rent to your mother?
(A) No, I don’t owe rent with the exception that my livelihood was out out, and I had to put these children in an orphan hbme.
(4) fell, did you lease from your mother? That Is what I went to know? Did you rent from-your mother?
(A) Ho, X did not,
(q) Whet did you mean by saying that you owed money? Did you mean then—
(A) Well, she was to receive the orofits of ) >• In boarding house,
(Q) Well, how would that make you owe money to your mother?
(A) Well, X don't know that X veally owe It to her If everything.
W Well, the question Is you either underatand what J eald or you did not. X ask ou if you owed any rent to your mother, and you said yes.
(A) No, X do not ows her any rent, because x paid her rent, X gave her my services for the home of my children and myself. X owe her no rent,

later on she saysi "and that Is why X dld'nt pay any rent to my mother, having my furniture In that house and giving my services".

i'irs. Sophie weinshenlc did not testify on that issue either.

She first relation employes vague *m indefinite^ and not sufficient to establish the rights of a sub-tenant.

0, 0, 8069 (8659) "lease or,hire is a synallagmatic contract te wnloh consent alone is sufficient,, and by whioh one party gives, to the other the enjoyment of a thing, or his labor, at a fixed price",

9, 9, 8679 (§e49) "®e the contract of lease, as to that of sale, three things are absolutely necessary, to-witi- the thing, the prioe, and the consent",

9, Q, 8071 (8041) "the price should be certain and determinate, and should consist of money, However, it may eonslst in a certain qusntity of eommodltlee, or even in a portion of the fruits yielded by the thing leased",

18 la. 410) 15 la, 574) lih 879) 8A 701) 7A 0B4) 14A 10® (176) 17A IS] 19A 101) 80A 800) 81A 745) 68A §49) 54A 60S) 1964) 56A §70) 41A 908) 1961a §09) 119 la, 881) le laudry lac p 412 ¡í 832, 844 Á Ó~-

There is no pretense and no evidence that Sophie Weinshenk had subleased any particular part or the. premises to her daughter Lucille for any fixed price, nor that they had fixed any particular sum as the value of her services, or as the value of the premises occupied by her.

If the other consideration suggested by Lucille Weinshenk is considered, that is the undetermined value of the use of her furniture to her mother, then it was a lease by her to her mother of her-furniture, which subjected her furniture to the lessor's privilege.

It has. been decided that mules leased to a lessee are subject to the lessor's privilege. 23A 453.

As Lucille Weinshenk has failed to establish that she was an undertenant in her mother's house, her furniture placed in that house with her consent must be liable to the lessor's privilege for the payment of the rent due.

Having concluded that the furniture claimed by Lucille Weinshenk the intervenor was liable to be siezed and sold to satisfy plaintiff's claim for rent, it follows that the District Court had the right to entertain the motion to sell it as perishable and to so order under Article 261-of the Code of Practice, Act 94 of 1900 p 151, and the constant practice of the Courts.

The seizure and sale of that furniture was a proceeding in rem by which Sophie Weinshenk the defendant, could not be Injured and of which she could not complain. 11 M 242, 28A 847; 26A 644.

The two judgments appealed from are therefore affirmed at the cost of the appellants.

Kay 6th. 1918*  