
    Hoffman v. Laurans & Al.
    Builders who contract with tenants for the repair and alteration of the leased premises, and have their contract recorded, have no lien or privilege on the property under lease. There is no prhitj between the builder and owner of the leased property; and the mere consent given in tire lease tc make 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 i* allowed. It is only given by express law. — O. C. 8280, 8152; 2L 93: 3L. 158; 11 L. 28; 17 L. 158. 489, and cases there noted.
    Appeal from the commercial court of New Orleans.
    This is an action against Pierre Laurans as owner, and Stansbury & Tens-field a firm doing business, and lessees of Laurans’s house on the corner of Magazine and Gravier streets, 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. Stansbury & 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. Thej e was a judgment in favor of Laurans, and the plaintiff appealed.
    
      Hoffmcm in propria persona and appellant.
    
      Briggs for the appellee.
   Mobphy, J.

delivered the opinion of the court.

Stansbury & 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 throe to five years. In November, 1836, the lessees accordingly contracted with Slack & Smallidge, who 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 nonpayment 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 tc pay. A compromise, however, took place and the suit in damages was discontinued on defendant’s paying to Ms 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 Ms property for the increase of value resulting from the improvements put upon it. Having failed in the court below, he appealed.

There being no privity between defendant and the builders, 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 in no way renders Mm 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 defend- [72] ant and on the faith of a long lease, equity forbids that he 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 by 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, &e. standing in the house were taken down. It is the opinion of one of the witnesses that although a new building has been placed on the premises, the alterations have been productive of injury rather than benefit to the defendant, as the property is no longer habitable, and can now be let only for billiard rooms or for purposes which do not require the conveniences of a dwelling-house, and that the future rent will be rather diminished than increased by the change.

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 be 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 [78] 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 Ms 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 himself to difficulty and inconvenience on account of the recording of their claim.

The appellant has called our attention to art. 591 of the Louisiana Code: —It provides that “ an undertaker or workman who has 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 analogous 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 of 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 a 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 Toullier, No. 387, and seq. Arts. 500 and 2697 of La. Oode have also been relied on, but in our opinion they have no direct bearing on the case before us; and cannot assist 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 be-[74] sides 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 for improvements has been extinguished.

The judgment of the commercial court is therefore affirmed with costs.  