
    TOBIN v. GREENBAUM.
    No. 14750.
    Court of Appeal of Louisiana. Orleans.
    Dec. 11, 1933.
    
      Ben Washastrom, of New Orleans, for appellant.
    James G. Sehillin, of New Orleans, for ap-pellee.
   HIGGINS, Judge.

The testamentary executor of the succession of John Tobin brought this action against the defendant to recover rent for certain leased premises for the months of June, July, August, September, October, November, and for thirteen days in the month of December, 1032, said to be due in accordance with a written lease and certain rent notes executed in connection therewith, which notes are alleged to have been mislaid or lost.

The defendant admitted signing the lease and the notes, but denied that the notes were lost and that he was in default and averred that he was willing and able to pay the notés upon their' presentation.

There was judgment in favor of the plaintiff, as prayed for, except for the rent for the month of June, as it was shown that the rent note for that month had been paid. Defendant has appealed.

Defendant contends, first, that there is not sufficient evidence to support the finding of the trial court that the notes sued upon were lost, and, second, that the plaintiff can only collect rent to September 15, 1932, the date upon, which the leased premises were adjudicated at public sale to a third person in the succession proceedings.

The record shows that the premises were leased to the defendant for a period of two years at a monthly rental of $50 per month, represented by certain notes, the expiration of the lease being conventionally fixed as of September 30, 1933. The deceased and his wife collected the rent from the defendant and upon his death the rent notes w.ere last seen while in possession of the widow. Diligent search was made for the notes, but they could not be located. An advertisement, for the purpose of locating the notes and having them returned to the owner, was published in the Times-Picayune newspaper, to which there was no response.

The defendant in his testimony admits that no one except the deceased’s widow and the attorney for the executor made demands upon him for the payment of the rent notes and he was unable to offer any evidence to show that the notes had been negotiated or pledged. Defendant also admits that he paid the rent represented by the other alleged lost rent notes to the adjudicatee of the property after December 13, 1932, when the authentic act of sale for the property was passed.

It is significant that no one except the widow and the attorney for the executor, from July, 1932, to the time of the trial in the lower court on June 7,1933, made any demand upon the defendant to pay the notes, and from June 7, 1933, to the date the case was argued here on November 28, 1933, apparently no. one made such a demand, because counsel for the defendant would have informed us thereof.

The trial court was satisfied that the notes had been lost and had never been negotiated or pledged, and, under the circumstances, we see no reason to interfere with his conclusions. Nagel v. Mignot, 8 Mart. (O. S.) 488.

With reference to the second point, the leased premises were sold in the succession proceedings for cash for the purpose of paying debts. Counsel for the defendant admits that the general rule of law is that the adjudicatee is not entitled to collect the rent for the property purchased until the act of sale is passed, the possession of the property delivered, and the purchase price, paid (Lapene v. Badeaux, 36 La. Ann. 194, Frierson v. New York Life Ins. Co., 174 La. 1037, 142 So. 256; Capital Bldg. & Loan Ass’n v. Northern Ins. Co., 166 La. 179, 116 So. 843), but he argues that the general rule does not apply in the instant ease because the ad-judicatee was a mortgage creditor and that, under article 2217 of the Rev. Civil Code, as the qualities of debtor and creditor united in the same person, the obligation of paying the purchase price in cash was extinguished, citing Copes v. Guillebeau, 34 La. Ann. 1035 and Landry v. Laplos, 113 La. 697, 37 So. 606. The fallacy in this argument was pointed out in the Lapene v. Badeaux and Capital Bldg. & Loan Ass’n v. Northern Ins. Company Cases, supra, in which the Supreme Court held that a contract of sale does not make the buyer tbe master and possessor of tbe property and does not give bim tbe right to enjoy, use, or dispose of it, but only a right to demand tbe delivery of it, and, with reference to a judicial sale, tbe court pointed out that tbe mere adjudication by the sheriff does not operate as a transfer of tbe property from tbe seized debtor to tbe adjudicatee at such sale for all purposes. In tbe present case it was not shown that tbe mortgagee did not continue to claim interest under tbe mortgage note after the adjudication and be certainly could not claim interest on tbe mortgage note and at tbe same time enjoy tbe fruits of the property in tbe form of rent. We conclude, as did our learned brother below, that tbe plaintiff was entitled to collect rent on tbe leased premises to December 13, 1932, when tbe formal act of sale was executed and the possession of tbe property was delivered to tbe adjudicatee.

Finally, defendant says that be should not be compelled to pay tbe costs of court and tbe attorney’s, fee as provided in tbe notes and the lease. He did not show that be ever tendered payment of the notes, even after there was evidence tending to show that tbe notes bad been lost or mislaid, and that tbe publication of this fact was made in the newspaper and no response made thereto. In tbe absence of any tender, we believe tbe trial court properly allowed these items.

For tbe reasons assigned tbe judgment is affirmed.

Affirmed.  