Lesseigne v. Cedar Grove Realty Co.

SOMMERVILLE, J. Plaintiffs, as owners of a certain plantation in St. Charles parish, sue for the possession of a rent note amounting to $2,850, for the rent of that plantation for the year beginning March 1, 1920, which rent note they allege was withheld by defendant at the time of the sale of the plantation by the latter to them on January 26, 1920; said note being marked nonnegotiable, and signed by the tenant of the place. Defendant answered, admitting that it had sold the plantation to the plaintiffs at the time indicated, but that the rent and rent note for the year 1920 was reserved to them, and it did not pass with the plantation, under a verbal understanding made before or at the time of the sale of the plantation. There was judgment in favor of plaintiffs for the note sued upon, but the clerk, in writing up the judgment, said that it was for $1,850 instead of $2,850, and plaintiffs took an appeal for the purpose of having this error corrected. The defendant, the Cedar Grove Realty [643] Company, Inc., has answered the appeal, ashing for a reversal of the judgment on the ground of erroneous rulings of the court in rejecting parol testimony to prove the alleged contract with reference to the note being reserved by it, the defendant. In our view of the case it will not be necessary to pass upon this important question. Besides, in the case of Bostwick v. Thomson, 149 La. 152, 88 South. 775, this day decided, the question of the admission of parol evidence to vary, contradict, or enlarge the terms of an authentic act of sale was decided adversely to the position of defendant in this case. Defendant also filed an exception of no cause of action in this court, but the statement of the case shows that the petition contains a cause of action. [1] Prentiss E. Edrington, Jr., alleging himself to have been aggrieved by the judgment against defendant, also appealed, and his appeal is found in the same record. The plaintiffs moved to dismiss the appeal of Edrington on the ground that he was without interest; but the law gives to third persons the right of intervening and appealing in any case where they allege that they have an interest in the cause, and where they have been aggrieved by the judgment rendered. On the same day that Edrington filed his appeal, he also filed an assignment of errors based on the ruling of the court in disallowing oral evidence to vary the terms of an authentic act. This point has already been disposed of. And on that same day, February 11, 1921, plaintiffs filed an answer to the appeal of Prentiss E. Edrington, Jr., asking for a dismissal of his appeal on the ground that he was without interest. The lease of the plantation by defendant to the present lessee, Theodore J. Nagel, is of date March 20, 1919. It was to commence on that day and terminate on the 30th day of December, 1921. The consideration and rent was fixed at $2,850 per year for the first and second years, and $2,700 for the third year, payable on the 21st of October of each year, represented by notes which were nonnegotiable promissory notes for the above amounts, and delivered to the lessor at the date of their issuance. It would appear that the first note, for the year ending March 1, 1920, has been paid. And this suit is for the second note, falling due March 1, 1921. The only question in the case is whether the second note now sued for passed to the plaintiffs when they bought the plantation from defendants on January 26, 1920. In the act of sale it was declared by defendant that it did “grant, bargain, sell, con-yes'-, transfer, assign, set over, abandon and deliver, with all legal warranties, and with full subrogation and substitution in and to all their rights and actions in warranty which the said Cedar Grove Realty Company, Inc., has or might have against all preceding-owners, vendors and warrantors, unto the plaintiffs in this cause for the sum of $56,-000.” And in the act of sale it was said that the place was free from "all incumbrances in its name except the lease by Sidney Cres-po et al. to Theodore Nagel, which is fully set forth in the mortgage certificate attached hereto and made part hereof.” This lease or incumbrance, in favor of Theodore Nagel, was a burden which the property went burdened with to the plaintiffs in this cause. The lease was not an incumbrance in favor of the vendor. The vendor had sold, conveyed, transferred, assigned, set over, abandoned and delivered the property to the plaintiffs and this sale and delivery carried with it the property and the lease, together with the rent notes to plaintiffs. There is no merit in the contention of defendant that the lease did not pass with the plantation. “This court has said in several cases ‘that the purchaser of property is presumed to acquire all actions appurtenant to the property [645] and necessary to its perfect enjoyment; but as to damages actually suffered by the vendor before the sales they are personal to him and can not be recovered by the purchaser without an express subrogation.’ Clark v. Werner, 6 La. Ann. 408; Payne, Jr., v. James & Trager, 42 La. Ann. 234, 7 So. 457; Matthews v. Alsworth, 45 La. Ann. 466, 12 So. 518.” Bradford v. Demare, 46 La. Ann. 1530, 16 South. 487. [2] The rents and fruits of an immovable belong primarily to its owner; and the ownership, made by transfer from one person to another pending the lease, and the lease, if recorded, go with the property. It was said in the case of Summers & Brannins v. Clark, 30 La. Ann. 436: “As rents are considered to accrue day by day, and as being due by successive obligations, it may well happen that the rents of today are due to A., and those of tomorrow to B., though the lessee hold under one and the same contract all the while. In principle, therefore, where the right to receive the- rents has passed from one person to another, the tenant cannot plead, against the latter’s demand for rent, payments he may have made, by anticipation, to the former. “A tenant who has given negotiable promissory notes for future rents ought to be considered in a position similar to one who has paid his rents in advance. The question, therefore, presented for our decision is, When rents to accrue in the future have been paid in advance, * * * does a seizure of the leased immovable by a judgment creditor or lessor operate a seizure of rents accruing after the seizure ?” And it was held that they did. “The rents and fruits of an immovable under seizure ‘are considered as making part’ of the thing seized — :C. C. 466 — and the sheriff is required ‘tó take them..’ C. P. 656.” Summers & Brannins v. Clark, supra. The rights of the vendor and the vendee date from the day of the sale. The declaration in the petition and in the deed include the rent for the year 1920, and the judgment appealed from was correct, except as to the amount of the note sued for. See Matthew v. Alsworth, 45 La. Ann. 465, 12 South. 518. The law on the subject is contained in article 2461 of the Civil Code, which reads: “The sale of a thing includes that of its accessories, and of whatever has been destined for its constant use, unless there be a reservation to the contrary” —and article 2015, which reads: “Not only servitudes, but leases and all other rights, which the .owner had imposed on his land before the alienation of the soil, form real obligations which accompany it in the hands of the person who acquires it, although he may have made no stipulation * * * in the act of transfer.” As the act of sale makes no mention of the retention by the vendor of the rent of the property for the year which was to become due, hut, on the contrary, makes, full and free delivery of the property with the rights, which included the lease, it becomes unnecessary to discuss the admission of parol evidence to change the written act of sale. It is therefore ordered, adjudged, and decreed that the judgment appealed from be amended by commanding the Cedar Grove Realty Company, Inc., through its officers or attorneys, to deliver possession of the note herein sued upon to petitioners, said note being valued at $2,850, with interest from October 1, 1920, at the rate of 8 per centum per annum, with costs to be paid by defendant. DAWKINS, J., recused.