
    
      NORTON vs. ORMSBY.
    
    Appeal from the court of the parish and city of New Orleans.
    A lessee, after transferring his whole interest in the lease, cannot exercise the rights of a sub-lessor.
   Martin J.

delivered the opinion of the court. The petition states that a writ of seizure issued out of the parish court, in favor of the present defendant, against the goods of M’Carty, for about four hundred dollars, claimed for the rent of a certain house, and premises, due to the present defendant by M’Carty—that the sheriff seized all the goods there found—a part of which belonged to third persons; that the present defendant released all the property belonging to third persons, except that which belonged to the present plaintiff, consisting of two carts, &c. which he claims.

The answer avers that the property claimed is liable to the rent due to the defendant—that the goods of M’Carty are insufficient—that the plaintiff’s property is peculiarly liable, as at the time of the seizure, he was M’Carty’s partner, in the occupation of the premises leased by M’Carty.

East’n District.

June, 1823.

There was judgment for the plaintiff, and the defendant appealed.

It appears that six notes subscribed by M’Carty, payable to the defendant, were sold. They all bear date of April 5th, 1822, and, except one, are attested by H. M’Lean. One of them is for four hundred dollars, payable on the 15th of May and June, following—three of one hundred dollars each, payable in July, August and October.

Hotchkiss deposed as to the seizure of the property, and that the rent of the premises, (on which the seizure was made,) was to be paid by M’Carty and Donaldson. The plaintiff was to provide an ostler and attend to the stables---was to receive one half of the profits.

Dean deposed also as to the seizure.

So did the deputy sheriff, who deposed he surrendered all the property that did not appear to belong to M'Carty, or the plaintiff—M'Carty's property was afterwards surrendered to his syndic. There was also in the sheriff's hands three fi fas, against M'Carty's goods.

M'Carty, deposed that the plaintiff was engaged with him in keeping the stables. He was to superintend them and find an ostler, and was to receive half of the profits. The deponent's syndic sold the property seized, for six hundred dollars, including the unexpired part of the lease.

Stringer deposed, that, as syndic of M’Carty’s creditors, he received from the sheriff the property seized for rent, with the consent of the defendant’s attorney. That he sold it for six hundred dollars and upwards, including the unexpired part of the lease, amounting to two hundred and forty dollars—two hundred and seventy dollars are claimed as law charges—other sums are due to the notary, sheriff and clerk of the supreme court.

M’Lean deposed, that the notes, annexed to his deposition amounting to eight hundred dollars, were given by M’Carty to the defendant, for the lease of the houses, stables and appurtenances, sold by Vannorght to M’Carty. He understood M’Carty gave another note, for four hundred dollars to the defendant, for the lease.

On his cross-examination, the witness deposed that he drew the notes and delivered them to the defendant. As well as he recollects, there was no consideration given for them. He has often heard Vannorght say he was largely indebted to the defendant, and wanted to secure amount of the lease to her and her children. He has no hesitation in saying that Vannorght’s intention was to prevent others from taking the property.

It is contended that the defendant is an assignee of the lease, and may exercise the right of a lessor, in compelling the payment of the rent.

- The evidence shew that Vannorght, the original lessee, sold his lease, (that is to say the right of occupying the premises during the unexpired part of the term, for which they had been leased to him,) to M’Carty, for a specific sum, which he directed to be paid to the present defendant, and that, for this purpose, M’Carty executed six promissory notes.

Vannorght, the original lessee, had a right to make a sub lease, or to transfer his lease. Civil Code, 374, art. 9.

If he had made a sub lease, the sub-lessee would have been bound to pay him the rent, as to a landlord, and would have been entitled to claim from the sub-lessor whatever a lessee may claim of a landlord. If by accident the buildings leased had been totally or partially destroyed, the sub lessee might, according to the nature of the case, have claimed a diminution of the rent or the cancelling of the lease. Id. art. 20.

By transferring or selling his lease, Vannorght, as he did not undergo the obligations of a sub-lessor, did not acquire any of a sub-lessor’s rights or privileges. He had no rent to demand. The consideration of the sale, or transfer,does not differ in its nature from the price or consideration of the sale of a tract of land, a chattel, an incorporeal right, or a debt.

This price, once agreed upon, might have been retained, even if the leased buildings were consumed by fire. The defendant, to whom this price was to be paid, took notes payable to herself, with the consent of Vannorght, the vendee, the object of whose bounty she was. Nothing shews that either Vannorght, or she, contracted, towards M’Carty, the obligations of a sub-lessor.

It is true, one of the witnesses deposes, that M’Carty was to pay the rent, and this he heard from M’Carty and the plaintiff. But M’Lean, one of the defendant’s witnesses, who was the person who drew the notes, expressly swears, that the notes were “ the price of the lease, sold by Vannorght to M’Carty.” It does not appear that Vannorght retained any interest in the leased, premises, nor transferred any to the defendant, except the right of receiving the price, for which the lease was sold.

Lobdell for the plaintiff, Preston for the defendant.

It is therefore ordered, adjudged, and decreed, that the judgment of the parish couat be affirmed with costs.  