
    By CHARLES P. CLAIBORNE, Judge.
    SUCCESSION of FRANK A. VON PHUL.
    No. 7378.
    November 25th. 1918.
   CHAHLBS T. CLAXBORHI, JUDOS.

Under tha following advertisemmt of sala: "the rlgit of occupancy of the premises expiring September 30th. 1917 at fifty Dollars par month"^Hro. C. S. Taldnar became tha adjudicates. Sha question praeented is^what ara har rights and obligations? Has aha acquired tha right to occupy tha premisas on payment of (780, or must aha pay (750 and tha rant besides?

She facts ara as follows: Trank A. Von Ihul died April 4th.; tha administratrix of his succession caused an inventory of the property left by tha deceased to ha made. It 'consisted, in part, of the contents of a drug store, ex» plotted by the decease^ which were appraised at (884.15.

She administratrix presented a petition in which she alleged; "that among the effects left by .the said Trank A. Von Fhul is a drug atore located at Canal and Dopes Streets xxx that this drug store prior to the death of said Von Ihul was actively operated and that since his death the said drug store has been closed, x x x that the rent on said premisas continues to run at the rate of (50 par month, and that same is expensive to keep in its present condition and is a loss to the estate; x x x that the lata Trank A. Ton Ihul ocoupiad the said premises under an agreement with Hr*. Veldner under which agreement the said VOn Ihul. wae to occupy the said premises from Ootober 1st.1915 up to and including September 30th.l917 at a rental of (50 per month; x x that the oontents of this-drug store, as is shown by the inventory, as well as the right of oooupanoy, should ba sold as a going oonoem and in 81obo at one and the same time".

Sha also avarrad that there were a lot of furniture and other effects contained in said premises which should also ha sold, and she prayed for an order for the sale of said property for cash.

An order was accordingly granted for the sale of "the movable effoots set forth in the petition".

It is admitted that the auctioneer advertised the thing to he sold as "the entire contents of the drug store Ho. 3120 Canal Street occupied by the deceased F. A. Von Fhul, and the right of occupancy of the premises expiring September 30th. 1917 at Fifty Dollars per month."

lira. Feldner heoams the adjudicates on June 2nd. 1916 for $750 Cash.

A number of witnesses testified that the auctioneer, prior to the crying, announced orally that the purchaser buying the drug store should assume the rental at Fifty Dollars per month until the expiration of the lease. The proces-verbal of the auctioneer so states.

Mrs. Feldner states that she did not hear this announcement.

He do not consider it neoessary to determine whether this announcement was made, or whether the fact that it was made was admissible in evidence. Ve have come to the conclusion that the sale "of the right of occupancy of the premises expiring September 30th. 1917 at Fifty Dollars per month" meant that the purchaser was to pay $50 a month for the privilege of occupying said premises until September 30th. 1917. It was the same as if the advertisement had said: "the right to occupy said premises for a period expiring September 30th. 1917 at the rate of $50 per month". The parties selling the right, and the purchaser of it, under» stood it that way. The succession had no title to the right of occupancy up to September 30th. 1917, a period of fifteen months from the day of sale and of eighteen months from the day of the death of Von Fhul and therefore could not sell it. It had not paid the rent up to that time and could not pay it. Ho one knew this better than the purchaser, Mrs. Feldner, who was tha owner of the property. Under the law»<Act 128 of 1894 p. 163 - the lessor's privilege could not extend to secure rent for a term of more than one year after the death of Ton Ehul, or after April 4th. 1917, and there» fore the succession could not acquire and could not transfer a longer right of occupancy, or a right of oocupangy // . extending beyond April 4th. 1917^. There waa "no certainty that the assets of tho succession would he sufficient to pay the rent even to that time, as the succession was admittedly insolvent. Von Phul had hound himself to pay Utb. Peldner #760 for the right of occupancy from June 2nd. 1916 to September 30th. 1917, or for fifteen months at #50 per month. The contents of the Drug Store were appraised at #884.16. The two combined represented a value of #1634.15. A year and a half before^ lira. Peldner herself had sold the drug store to Ton Phul for #3250. It is not possible that the auctioneer and Itrs. Peldner understood that the one was selling, and the other was acquiring something of that value for the price of #760. The price shows conclusively that the bidders understood that they were acquiring the stock of goods and the goodwill of the store for #760, and the right to occupy the store up to September 30th. 1917 upon the additional payment of #50 per month.

In the case of Talker vs Dohan 39 A 743 the thing sold was "the right of occupancy from the day of sale to the 30th. of September 1886". In the case of Villavaso vs Their Creditors 48 A 946 the court said, on p. 949: "The difference between buying a lease and purchasing the right of occupancy merely was drawn in Walker vs Dohan 39 A 743. Te find no warrant to hold that the purchase of the privilege of occupancy offered, with no reference to liability under the lease, imports any obligation on the part of the purchaser exeept to pay his bid*. In the case of Marfese vs Nelson 10 Ct. Appeal 288 (291) - the plaintiff seized and sold the "right of occupancy", without explanation or qualification of any kind.

Ve have therefore come to the concl of the right of occupancy at #50 par month obligation to pay the future rent over and above the price of adjudication and was tantamount to a sale of the lwaso.

She leaaor lira. Peldner having purchased the lease, the qualities of t$ty, debtor and creditor were united in her person and put an end to the lease after June 2nd. 1916 - 7 A 610; 11 A 433; 48 A 946, 949, 950.

She Administratrix filed an account in which she charged Urs. Peldner with the amount of her bid $750, crediting her with $103.33 being rent for the two months of April and May and two days in June 1916 -, leaving Urs. Peldner liable to the Succession in the amount of $646.67.

Urs. Peldner opposed said account, claiming rent from April 1st. 1916 to September 30th. 1917 or eighteen months or $900 - and $40.50 costs expended by her in prior proceedings herein.

Joseph S. Vinson also opposed the aocount claiming to be a privileged creditor for the sum of $613.32 for salary due him as clerk and general manager of the drug store of the deceased at a salary of $100 per month from October 1st. 1915 to April 4th. 1916.

The Ueyers Printing Company claim $109.50 instead of $56 for which they are placed upon the account.

V. V. Klein claims $70.40 for money paid for account of deceased.

Puerst A Kraemer claim $19.30 for goods sold and delivered.

There was Judgment maintaining the opposltioh of Urs. Peldner in so far as to place her on the account as a privileged creditor for $600 for rent due and to become due, i/-" /fty (for the period of one year from the death of Von Hiuland for $40.50 costs of court, and placing her on the account as a debtor for $750, the amount of her bid, leaving her Indebted to the succession in the sum of $109.50.

The opposition of Joseph F. Vincent was dismissed.

As thus amended the account was homologated.

From this Judgment the Administratrix and Joseph Vinson hare appealed.

She claims of the other opponents who haws not appealed cannot he considered.

In this court Mrs. Peldner has prayed that the Judgment in her favor he increased to $75(5, ¿fe" f^7'

We have already announced our conclusions as-regards the claims of lira. Peldner, from which it results that she is a debtor to the succession in the sum of #750,. subject to a first credit of $103.33 and to a second credit of $40.50 costs spent by her, or $606.17.

Ur. Vinson is the only witness in'his own behalf. The truth is that he was a clerk in the employ of the deceased but at what salary and what amount is due to him is testified to by himself alone. He was twenty-three years old on the trial of the case; and he was not a pharmacist but only an apprentice; his knowledge was empirical, never having had any but practical experience; he was in the employ of Von Phul since the age of eleven; after Von Phul's death he worked at a confectionery at $13 a week and board; he was living on the place róien Von Phul died; and was in possession of the store; he locked the door and notified his brother; and then delivered the keys to the Notary; his salary was paid up to .September 1st, 1915; the expense account of Von Phul beginning November 1914 does not include the name of Vinson; it only shows one payment to him of $17. 25; opponent locked up the Von Phul's books at his death, and they were not unlocked until the inventory was taken; the book in which opponents account was kept has sixteen pages missing; opponent says they were torn out since he saw the book.

The attorney for the succession testifies that he received the book at the time of the making of the Inventory; that the sixteen pages were then missing and that he called Mr. Vinson's attention to it.

We dismiss the opposition' of' Mr. Vinson with the statement that with the Judge-a quo we do not think that his claim was made out with sufficient certainty to Justify a judgment in his favor.

It Í3 therefore ordered that the judgment of the District Court maintaining the opposition of Mrs. Feldner to the account of the Administratrix herein filed on September 19th. 1917 and placing her on said account as a privileged creditor for six hundred dollars rent he reversed and avoided; and it is now.ordered that the said Mrs. Charles B. Feldner he condemned to pay to the Succession of Frank A. Von Phul the sum of Seven hundred and fifty dollars subject to a first credit of One hundred and three 33-100 dollars and to a second credit of Forty 50-100 dollars; and as thus amended that the judgment of District Court be affirmed, Mrs. Feldner paying the costs of her opposition - and of her appeal.

November 25th. 1918.  