
    Municipality Number One v. General Council of New Orleans.
    
    A contract by which a party is to pay an annual rent of six per cent on the cost of a building, with the privilege of becoming the owner on paying the price, creates the relation of landlord and tenant.
    The parish prison being situated in the First Municipality, became the property of thut municipality by the act of March 8, 1836.
    APPEAL from the First District Court of New Orleans, McHenry, J.
    
      C. Roselius, for plaintiff.
    
      W. W. King, for defendants.
    
      
       This case was decided in June, 1847, and having been omitted in the Reports of that year, is inserted here at the request of the Chief Justice.
    
   The judgment of the court was pronounced by

Eustis, C. J.

This is an action for arrears of rent alleged to be due by the defendants, as the successors of the late Police Jury of the parish of Orleans, for the use and occupation of the parish prison.

On the division of the property of the city of New Orleans in 1836, the real properly, of whatever description or kind, and the revenues arising therefrom, then vested in the mayor, aldermen and inhabitants of the city, were vested in the respective municipalities in which the property should be situated. The parish prison being in the First Municipality, it and its revenues became vested f , ‘ , ° . . , . , ,. . , in that body. And so the respective parties considered it, and accordingly Irom the completion of the prison, which was not finished at the time of the division in 1836, the police jury has used the prison under a written contract and has made payments on account of the rent even since the institution of the present suit.

It is contended that the rights of the Old Corporation in the prisons and land on which they were erected, did not pass absolutely to the First Municipality, but were modified by a contract which had been made before the division with the police jury in relation to them.

It was the duty of the police jury to provide a good and sufficient jail for the prisoners of the State, and the former corporation being about to build a prison for its purposes, it was agreed with the police jury that another should be built adjacent to it for the use of the parish of Orleans, of which the police jury was the representative.

Of the nature of this contract there can be no question ; the police jury was to pay an annual rent of six per cent on the cost of the parish jail and the lot, with the privilege of becoming the owner on paying the capital. There are provisions in the contract which are accidental and do not in any respect change its character, which is that of letting and hiring, with a privilege of the lessee becoming, on a certain contingency, the owner.

. There have been various payments made in furtherance of the contract; indeed it has been in execution ever since the possession was taken of the jail by the parish authorities. It is said that all has been done in error and under a mistake of the rights of the parties under the contract.

In this opinion we have not been able to concur, and are satisfied that the property belongs of right to the First Municipality under the act of 1836, and that the contract as it now stands creates the relation of landlord and tenant, with the accessory rights of the latter, on the performance of the condition on which they depend.

It is therefore ordered, adjudged and decreed, that the judgment of the court below be amended, and that there be judgment in favor of the plaintiff against the defendant for the sum often thousand five hundred and seventy eight dollars and forty-eight cents, with interest from judicial demand, to wit, the 2d day of September, 1846, until paid; the plaintiff' paying the costs of this appeal.  