
    HOFFMAN vs. LAURANS ET AL.
    APPEAL PROM THE COMMERCIAL COURT OP NEW ORLEANS.
    Builders who contract with tenants for the repair and alteration of the leased 1 premises, and have their contract recorded, have no lien or privilege on the property under lease. — There is no privity between the builder and owner Of the leased property; and the mere consent given in the lease to ipahe the alterations on the premises, renders the lessor in no way liable to the builder.
    The lessor is not bound to pay for improvements or alterations made on the leased premises by the tenant when they are not of any advantage to him.
    No mortgage or privilege can be established or extended by analogy to similar cases where it is allowed. It is only given by express law.
    This is an action against Pierre Laurans as owner, and Stansbury & Tensfield a firm doing business, -and lessees of Laurans’s house on the corner of Magazine and Gravier street, to render the former liable with the latter for their debt due by note to certain builders, which was transferred to the plaintiff. He alleges that Laurans leased his house to the other defendants, who employed Messrs. Slack & Smallidge, builders to make repairs and alterations on the leased premises. Their contract was for $2000 and recorded. Stans-bury & Tensfield gave their note for $1500 the balance due on the contract, and the plaintiff alleges that the builders’ privilege attaches to the note in his hands and operates as a lien or privilege on the property.
    The - defendant, Laurans, resisted this demand, on several grounds. There was a judgment in favor of Laurans, and the plaintiff appealed.
    
      Hoffman, in propria persona and appellant.
    
      Briggs, for the appellee.
   Morphy, J.

delivered the opinion of the court.

Stansbury and Tensfield having rented of defendant a house and lot at the corner of Gravier and Magazine streets, became desirous of converting the premises into large billiard rooms ; and they obtained his permission to do so; they engaging to pay an additional rent and to make at their own expense the necessary improvements and alterations, and defendant agreeing to contribute $416 towards the cost of the same,, and to extend the lease from three to five years. In November, 1836, the lessees accordingly contracted with Slack & Smallidgewho undertook for $2000 to make the proposed improvements, and who caused their contract to be registered in the office of the recorder of mortgages : of the stipulated sum .of $2000, there yet remains unpaid $1500 the amount of a note- given to the builders by Stansbury and Tensfield, but which they suffered to be protested for non-payment at maturity. In the beginning of 1838, the tenants having failed to pay their rent, defendant brought suit against them and had the lease annulled. The tenants on the other hand instituted an action for damages against defendant for having ’illegally, as they .alleged, broken up their coffee house and deprived them of large rents they were receiving from the sub-tenants of the upper story. In his answer to this suit the defendant refers to the builders’ claim which Stansbury and Tensfield had neglected to pay. A compromise howevei took place and the suit in damages was discontinued on defendants paying to his former tenants a sum of $700. The plaintiff having become the holder of the note of $1500 now claims its amount of defendant, and a privilege on his property for the increase of value resulting from the improvements put upon it. Having failed in the court below, he appealed.

Builders ivho contract with tenants for the nation ‘^of athe contract recorded, have no Hen or privilege on under Pl°ie2[ -between tIie buiMer and leased property, and the mere consent given in make alte-prem!ses°n renders the lessor in no wav liable. to the builders,

There being no privity between defendant and the builders, ... ■ . i •iiii , _ , it is not easy to perceive what right they had to record their agreement with the lessees, and how such recording can operate as a lien or privilege on his property. The mere consent he gave in the lease that the proposed alterations might . & be made on the premises m no way renders him a party to the subsequent contract with the builders. It appears-to us. on the contrary that the latter were thereby fully- informed that defendant was not to be liable for any thing beyond the sum he actually agreed to advance to his tenants. It is said that as these improvements have been made with the knowledge of defendant and on the faith of a long lease, equity forbids that lie should come into the immediate enjoyment of them without assuming the obligation of the lessees to the builders. From the testimony it is by no means so obvious that these . . improvements, although amounting to $2000 were of any advantage to defendant, or that he was upon the whole a gainer ^y the transaction. These improvements were made to suit the convenience and purposes of the particular tenants * who were to keep the property at a high rent for five years• all the partitions, doors, chimney pieces, &c. standing in the house were taken down. It is the opinion of one of the wit-nesses that although a new building has been placed on the , , premises, the alterations have been productive of injury rather than benefit to defendant, as the property is no longer habit-ahle> and can now he let only for billiard rooms or for purposes which do not require the conveniences of a dwelling house, and that the future rent will he rather diminished than increased by the change.

The lessor is pay bfoi"d improvements or alterations made on the by Se<the1 tenant «otTVanv advantage to him.

It is next urged that as the compromise between defendant and his tenants was entered into with a full knowledge of the claim of the builders, it must have been with the understanding that it was to he satisfied by defendant independent of the $700 paid to Stansbury and Tensfield. If such had been the fact, the plaintiff could easily have proved it by the testimony of the latter or of Evariste Blanc, who made the settlement for defendant. In the absence of any evidence on this head, we would rather believe that the $700 which Laurans paid to compromise the matter was accepted by the tenants, because together with the $416 already received and the arrears of rent due by them, it made up the expense of $2000 they had incurred for the improvements. As to the builders, when they treated with Stansbury and Tensfield they well knew that they were mere tenants and could create by their acts no charge or' lien on defendant’s property; they knew they were to look for' their payment to them alone, and it is only ten months after' the date of their contract, and when they began to fear that they might suffer by their incautiousness that they thought of having it recorded as a lien on the property. The mention made by defendant of this recorded claim in his answer to the action of his tenants has been urged as a confession that it was binding upon him. We cannot view it in this light; it appears to us rather a complaint on his part that the lessees had'failed to pay the builders, as they had engaged to do, and had thus subjected him to difficulty and inconvenience on account of the recording of their claim’.

No mortgage £e ^estsTwLhed si m,^ar . cases where it is allowed. It is only given by express law.

The appellant has called our attention to article 591 of the Louisiana Code: — It provides that “an undertaker or workman who ha!s made at the instance of the usufructuary any building or improvement on the property and who is unpaid at the expiration of the usufruct, preserves his lien on the property and can enforce it against the owner.” We are Called upon to extend by analogy the same privilege to lessees for improvements made during the lease ; this we. would by no means feel authorized to do, even if the cases were as ana- . logous as the counsel represents them to be; for no mortgage ... .... , . or privilege can exist unless given by express law ; La. Code, arts. 3152, 3280. But the right uf an Usufructuary differs materially from that of a lessee. The one is -a real right, a kind of ownership, subjecting the possessor to' the payment of taxes and repairs ; susceptible by law of hypothecation, and conferring generally á life-estate, which the usufructuary can at any time renounce or abandon, or transfer at his will and pleasure. The other is a right strictly personal giving to the lessee only the use of the property and conferring neither the legal possession nor any proprietary interest in it. 3 Touillier, No. 387, arid seq.: articles 500 and 2097 of the La. Code have also been relied on, but in our opinion they have no direct bearing on the case before us; and cannot assis't the plaintiff when he seeks to enforce a privilege so adverse to or rather destructive of the right of property. The . doctrine he contends for would besides open a wide door to fraud and collusion between lessees and builders; and would place the owner completely at their mercy. A satisfied contract might be suffered to remain recorded against the property without the possibility of proof on the part of the lessor or owner that the debt created for1 improvements has been extinguished.

The judgment of the Commercial Court is therefore affirmed with costs.  