Delmar Realty Co. v. Diliberti , 11 Teiss. 43 ( 1913 )

His Honor, JOHN ST. PAUL,

rendered the opinion and decree of the Court, as follows:

The issues in this case finally narrow themselves down to this: Has Mrs. Commander established with certainty that her vendor’s privilege covers so fully the .articles herein sold by the sheriff, that there was not sufficient besides, and unaffected by her privilege, to satisfy the claim and general privilege of the plaintiff as lessor. For if there was sufficient property unaffected by her privilege to.satisfy plaintiff’s claim, it is out of that property that plaintif’s claim must first be satisfied (argument see €. P. 403; See also, Young vs. Muncy No. 1, 5 An., 736; and Denenbourg vs. Didion, 7 An. 344.) And in that ca,se neither her own privilege nor that of plaintiff conflict at all with that ¡of appellants, one of whom has also a vendor’s privilege, and' the other a mechanic’s lien superior in any event to her own (C. C., 3127).

We do not think she has established that .her vender’s privilege extended so far. It is not sufficient for one who claims a particular privilege to point .out in a general way the articles on which he claims such privilege; he must make it certain that his privilege covérs the very .articles on which he claims it. Hamilton vs. His Creditors, of An., 1035.

In the case before us Mrs. Commander has established only in a general way that she sold the contents of a barroom and building to defendant about two years before the sheriff’s sale. Her witnesses were able to testify to this only; that looking over a bill of sale to defendant and remembering the contents of the establishment, they recognized many (let ns say, most) ¡of the articles, particularly the fixtures, as being’ the same as those covered by her bill of sale. ■

But the sheriff’s proces-verbal contains above 91 different lots, each separately numbered, and scarcely a single one of these lots was particularly pointed out. Not ■even by inference can it be established that the whole, or even the greater part, of the articles sold were subject to her privilege. For instance, take at random items 14, 15, 22, 23, 27, 29, 31, 34, 35, 38, 42, 50, 60, to 64, 67, 78, 85; there is not a word in the testimony that all these articles were sold by Mrs. Commander to defendant. And it is all but certain that the following were not: Items 7,16, 17, 18, 19, 26, 36, 39, 40, 44, 53, 76, 91.

Pretty much the same can be said of almost any other lot, even as to some which appear to be fixtures; for instance there is nothing to identify, say, items 11, 32, 45, 49, etc., as being the identical articles sold by her to defendant.

It is therefore simply impossible to discover with anything like certainty what articles were covered by her privilege and what not. It cannot even be eked out as probable, if indeed such a course were at all permissible. . Her privilegie cannot then be allowed against appellants. As between herself and plaintiff, both appellees, we are without power to disturb it.

' It is therefore ordered that the judgment appealed from be amended so as to recognize that the privilege of the National Cash Begister ‘’Company to the extent of $125.00, one hundred and twenty-five dollars, and of the ;L. Grünewald Company to the extent of ($51.50) fifty-one 50/100 dollars, is superior to the claim rof Mrs. Katherine Commander and of plaintiff and to direct that they be paid in preference to and Dy priority over them, out of the proceeds of sale in the sheriff’s hands. And as thus amended the judgment is affirmed, the appellees to pay costs of'both'típnrts.

Opinion and decree, December 22, 1913. Opinion and decree on rehearing, January 12, 1914. Writ denied, February 18, 1914.