New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1871-05-30
THE COURTS.
Supreme Court.

supreme Court.
In the Supreme Court, yesterday, Asso-
ciate Justice Howe delivered the following
opinion in the case of the city of Baltimore
VS.. Henry Parlange, George Merz, third op-
ponent-Appeal from the Fifth District
Court for the parish of Orleans
This case involves a conflict of privilege
between the vendor of lands and the con-
tractor who has, after the sale, repaired Or
reconstructed the buildings which were on
the lands.
In 1859 the city of Baltimore sold to Par
LANCE the lots in question, fronting respect
lively on Orleans and st. Ann streets, a
theatre and ballroom, reserving ven
doris privilege and mortgage, with the pact
of non-alienatiOn, to secure the unpaid por-
ton of the price.
In 1869 the city of Baltimore took pro-
ceedings to collect an unpaid portion of
the price, and to enforce its privilege and
mortgage, and the property was seized and
advertised for sale by the Sheriff.
George Merz filed his opposition, claim
ing, as transferee of Samuel johnson,
privilege for work done in 1867, under
recorded contract, in erecting. repairing and
renovating the building on the lots which
had in the meantime become the property
of Bernard Avegno. The work seems to
have been rendered necessary by a fire
which had occurred on the premises a short
time before.
A rule was taken by Merz for a separate
appraisement of lands and buildings under
the article 3235 of the code, which prescribes
that when the vendor of lands finds himself
opposed by workmen seeking payment for
a house or other work erected on the land,
a separate appraisement is made of the
ground and of the house, the vendor being
paid to the amount of the appraisement on
the land, and the ether to the amount of the
anDraisemeut of the bllildinp
1t appeared on the trial of the rule that
the building on the portion of the property
fronting on st. Ann street had been en-
tlreiy erected under the johnson contract
and as to this the judge quo ordered a
separate appraisement, the propriety of
which is not in dispute. AS to the portion
of the property fronting on Orleans street
the rule was dismissed on the ground, it
seems, that the privilege of the contractor
and separate appraisement could not be ap-
piled in such way, in favor of one who had
merely made repairs, as to encrOach on the
fund coming to the vendor. From this de-
cision Merz appealed.
The testimony on the rule is not very sat
isfactory, and would, doubtless, be made
more exact on regular trial of the opposi-
ton. johnson, the principal witness, says,
however: = +
II repaired the old Orleans Ball Room
and rebuilt the buildings on st. Ann street.
They were new buildings. The building on
Orleans street was almost rebuilt from the
ground up. Those buildings had been
burned almost to the ground; some parts
had to be rebuilt from the foundation; had
to put foundations in some places; fully one
half of the whole contract money was ex-
pended on the Orleans street building; the
place was a wreck"
From this we Judge that the re-
pairs on the Orleans 8 rect property
were necessary and extensive, amounting
well nigh to rebuilding. 1t seems clear
that they must have added greatly to the
value of the premises, which, without them
would not be likely to bring more than the
price of vacant property.
The privilege in favor of the contractor is
one which exempliies the intelligent sense
of the justice which distinguishes the
GIRL law. 1t is founded on the equitable
theory that he who has by his labor or ex-
penditure increased the value of thing
pledged for the payment of a debt should
not be omitted in the distribution of the
proceeds of that thing. Digest 20, 4, qui
p0tiOres etc.
By article 2lO3 of the Code Napoleon this
privilege for repairs, no less than for
building and rebuilding, is recognized; and
the commentators seem to agree that it
Is not PINNED by that of the vendor, but is
TO give the contractor the benefit of the in
property,
Duranton, volume I9, Nos. 14S to 1879; Del
vincourt, volume 3, page 154; Merlin re-
ports, volume Is, page 254; Persil, Privileges
ct HypOthe Iues, volume [ page 2l3.
The practical details OF the French system
differ from ours, but the principle of Justice
Is the same. By article 1916 of the Louisi-
ana code the privilege of contractors en-
ployed in constructing, rebuilding or repair
ing houses and buildings or making other
works on slloh houSas h,i1dinno M,
by them constructed, rebuilt or repaired. is
fully recognized. By article 1896 a separate
appraisement is provided when the vendor
finds himself opposed by workmen seeking
payment for house or other work erected
on the land. We are of opinion that the
rule of this latter article may be Justly ap-
pied to find the pro rata of proceeds due |
TO the maker of such necessary repairs as |
have added value to the thing pledged In |
adopting this view we do not, as objected |
by counsel, extend privilege by implica- |
ton. The privilege clearly exists by article |
32l6. 1t is on the building merely, not on |
the land. We merely follow the rule of |
article 1875 Ia rule which would probably |
exist without the article) in ascertaning, as |
best we may, the proportion of proceeds due |
to creditors equally meritorious.
Nor does the pact of non-alienation pre-
vent the subsequent contractor from ac-
quiring privilege. This point was settled |
in JamisOn VS.. Barelli, 90 Annual, 453
Nor do we perceive that the fact that Par
lange agreed to keep the buildings insured
for certain sum can affect the question
1t is therefore ordered that the Judgment
appealed from be reversed, and that the
rule for separate appraisement taken by
appellant be made absolute, plaintiff to paw
costs of appeal
In addition to the several cases published
in our edition of Sunday, rehearinU has
been refused in the case of Stevenson &
Co. vs. Mary Riser.
Eighth District Court-Petitfop Asking
That the Administrator of Finance be
Restrained from Receiving Any More
metropolitan Police Warrants for
Taxes-The Sheriff Restrained from
Selling Goods Not Paid For, etc.
The following important petition wasfiIed
Yesterday:
TO the Hon. Henry C. Dibble Judge of the Eipbtb
District Court Parish of Orleans:
The petition of John Davidson, z. A. ,
Tyler, Edward Rusha, Williamson Smith.
Hill, Henry Lindop, all of whom
reside III the city of New Orleans, and paw :
,axes upon property in said city, with !,
'espect represents: 4
That by act No. "A of the session acts of
500, re-enacted in act No. 90, session acts of !
1863, and again re-enacted in section 2259,
s26l and 2262, Revised Statutes of 1870 !
numbered act &C. session acts of 1870. estab- b"
lshlng Metropolitan Police District an5 / /
o provide Tor the government thereof II 10 |
provided that the Board of Commits ;onors {.
exercising the police government and a.. / l
line 81 the said district, shall, as SCI SCI, I
# estimate and apportionmcr.it moI a ooard Q
financial statement of tie sums reon G;p
for experses necessary in carryipG