Bartels v. Their Creditors ( 1856 )

Vookhies, J.

A provisional tableau of distribution filed by the syndic in this case has given rise to various oppositions.

1. The claim of F. S. Blatter for the sum of $17,705, classed as a privilege for rent, is opposed by Fdward Turpin, one of the creditors of the insolvents. Blatter, it appears, leased his property, known as the “ City Hotel,” to George W. Gullorn and John 0. Bartels, for the term of three years from the 14th of January, 1852, at an annual rent of $16,200, payable in monthly instalments of $1,350. On the 20th of December, 1854, Blatter leased the same property to James Stafford, John 0. Bartels and Amos W. Dana for the term of one year from the 14th of January, 1855, for the sum of $15,000, payable in monthly instalments of $1,250. The lessees under each contract furnished to the lessors their corresponding promissory notes. On the 30th of the same month in which the last contract of lease was entered into, Bartels and Dana, filed a petition in the Fifth District Court of New Orleans, accompanied with a schedule or statement of their affairs, in order to obtain a respite for one, two and three years from their creditors. Blatter was carried on the schedule thus filed as a creditor of the insolvents for the sum of $3,048 75, as the balance stated to be due to him on the three last installments of the lease ending the 14th of January, 1855. In the proceedings, there is no reference to the other contract of lease. On the refusal of their creditors to grant the respite, Bartels and Dana made a voluntary cession of their property on the 27th of February, 1855. At the syndic’s sale in May, 1855, the lease to the insolvents was adjudicated unconditionally to the lessor, Blatter, for the price of $3,000. Blatter's claim for rent was allowed for the entire term of tho lease, ending the 14th of January, 1856, to-wit: $15,000, with the lessor’s privilege, deducting therefrom the price of adjudication, to-wit: $3,000.

We are now required to determine, under these circumstances, whether Blatter is legally entitled to be classed on the tableau for the rent of the unexpired term of the lease, to be reckoned from the date of his purchase, to-wit: seven months and a half at $1,250 per month, making an aggregate of $9,375. We have recently decided a case in which we held, that the purchase of a lease by the lessor, operated as a dissolution of the contract of lease by confusion, the qualities of lessor and lessee uniting in the vendee. It is true, in that casej the consideration for the transfer of the lessee’s rights was expressly stipulated to be a premium, whilst in the present, no such mention is made; but it appears to us this is immaterial, as the effect in either case must be the same ; the divestiture of the lessee’s rights to which the purchaser becomes subroga-ted. Let us suppose, for instance, that any other person than the lessor himself had become the purchaser of the lease, would not such purchaser be bound not only for the purchase money, but for the rent stipulated to be paid by his vendor ? Illustrating farther, in a sub-lease, which the law permits the lessee to make, the rights of the lessor cannot be affected. “ The lessee has the right to under-lease or even to cede his lease to another person, unless this power has been expressly interdicted.” O. O. 2696. In such case the landlord’s privilege or right of pledge only would be affected. 0. O. 2676, 2677. What difference then is there between such a conveyance and a forced alienation of the lease to another person ? As to the legal effect of either quoad tho lessor, we think there can be none. We are, therefore, of opinion that the lease in this ease was dissolved by the sale to Slatter, the lessor. Slatter is, consequently, only entitled to recover the following sums with the lessor’s privilege, to be classed as such on the tableau of distribution, to-wit: $3,048 75, balance due under the first lease, and $3,875, balance due for five and a half months’ rent under the last lease, after having deducted therefrom $3,000, the purchase money for the unexpired term.

2. The claims of several creditors, for supplies as retail dealers, and for services rendered as domestics or servants, classed as privileges, are also opposed by Turpin. The controversy in this matter seems to be limited to the question, whether these creditors are entitled to the privileges allowed them by the judgment of the court below, to secure the payment of their respective claims. According to the decision in the case of Cook & Morehouse v. Dodge & Johnson, 6 An. 275, they are clearly not entitled to be ranked as privileged creditors. We do not think there is any good reason to authorize us to overrule that decision. Unless manifestly erroneous, we think it would be unwise for us to disregard the interpretation of a statute by ouy predecessors.

The claim of Sampson & Keene, classed as a privilege, is also opposed. They claim the vendor’s privilege on the price of certain furniture which was sold by them to the insolvents. The proof leaves no doubt on our minds as to the correctness of their claim, which was allowed by the judgment of the court below.

4. The following claims classed as privileges on the tableau are also opposed, to-wit:

Clerk’s costs and costs retained.:. $100 00

Sheriff’s costs of sale, advertising, &e.', labor, &c.'... 887 70

Notary’s fees...'. 150 00

Appraiser’s fees. 100 00

The sheriffs throughout the State are bound, whenever they return a paper or process into court, to endorse thereon th'o specified items of fees to which they may be entitled. All officers claiming costs or fees are bound, whenever required to do so, to deliver to .the person against whom such fees may be charged, an explicit fee bill. Clerks and sheriffs can only demand such fees as are expressly allowed’them by law. In the Act entitled “An act to regulate and define costs and fees generally,” (Session Acts of 1855, 162,) the only charge in relation to sheriff’s feesjlcft to the discretion of the court, is that for keeping personal property and slaves in certain cases. The fees which notaries may demand, are also defined and regulated by tbat Act. As none of the claims thus classed appear to have been established by the requisite proof, it is clear that they cannot be allowed. But considering the admissions in the record, which may have misled the parties in this regard, we think it would be inequitable to conclude them. Justice therefore,- requires that the cause should be remanded to determine the matter legally.

5. The claim of J. Stafford for $6,300, classed as an ordinary debt, is also contested. He was, as we have seen, one of the joint lessees under the second lease, and bound in solido with his partners for the rent. He was also bound for the debts contracted for the hotel after he became a partner, about July, 1853, as shown by the testimony of B. Barnett. Under that lease we have allowed Slatter $6,250 as rent, with the lessor’s privilege. Under these circumstances, we do not think Stafford should be permitted to partake in tho fund of the estate until the payment of the other creditors. Por the same reason, wc think the claims of J. Stafford & Co. for $3,502 and $274 41, classed as ordinary debts, should also be disallowed, so far as the same may be prejudicial to the other creditors. It is clear that the rights of the creditors of a partnership cannot be affected by equities which may exist between the partners.

6. We do not think there is any material error to the prejudice of the creditors in the amount allowed as commissions to the provisional syndic and syndic by the judgment of the court below.

It is, therefore, ordered and decreed, that the judgment of the court below be avoided and reversed, that F. 8. Slatter be classed on the tableau of distribution as a creditor for the sum of six thousand nine hundred and twenty-three dollars and seventy-five cents, with interest thereon, according to law, with the lessor’s privilege, being the balance due him for rent after deducting the sum of $3,000, the purchase money of the lease, that the claims of the creditors for supplies as retail dealers, and for services as domestics or servants be disallowed as privileges, and the same be classed as ordinary debts, that the claims of J. Stafford and of J. Stafford & Co., classed as ordinary debts, be rejected, that the cause be remanded to determine the amounts to which the clerk, sheriff notary and appraisers may be respectively entitled, that the judgment in other respects be affirmed, and that the costs of appeal be borne by the appellees against whom the judgment is reversed, and by the appellants where the judgment is affirmed in favor of the appellees.