New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1874-03-18

demand by general denial, and further
answering he says that he admits his sigma
ture to the note and document annexed tC
plaintiffs petition, but AYERS that the note
was given as the evidence of his indebted
ness to Burke, and that the document pur
porting to be sale of the property therein
mentioned was in fact never intended to be
such; but was attached to said note merely
as collateral to secure its payment. He
prays that plaintiffs demand be dismissed
On the thirteenth Of January, 1874, Mrs..
Mary Ann Benson, authorized by her hus
band, Samuel ID. Dixon, and Samuel D.
| Dixon, as tutor to his wites minor sisters,
filed an Intervention by permission of the
court, in which he alleges that, acting for
them, he leased the house and premises No.
1876 Washington street to the defendant,
from the first October, 1873, until the first
| October, lS1 1. at the monthly rent of sixty
dollars, payable at the end of every month;
that he lPower) took possession of the
premises, as contracted for, and paid inter-
venor and lessor S33, and no more, since
| the lease began; that he owes on said con-
tract of lease S6S7, of which S27 was due
on November |, 1873, and 500 On the first Of
each succeeding month, making $2O7 al
| ready due, and the residue to become So:
that Burke has sued for sequestrarion of
the effects on the premises, ON which he has
the lessons privilege and right Of pledge:
that Burke claims the property as his own.
He prays to be permitted to file his interven-
ton and third opposition, and for a writ OF
provisional seizure to issue. commanding
| the sheriff to seize all tne furniture in the
leased premises No. 1876 Washington street,
| that Burke's claim be rejected, and tor
| judgment against Power, lessee. for $6S7
| with five per cent interest from October l.
1873, with lessons lien and privilege on the
furniture AID movables contained in the
leased premises, or removed therefrom with
| in fifteen days, and that this lien and priv
| ilege be adiudged to extend to and affect
| the property claimed by Burke and BY him
| sequestered. January 81, 1874, ne filed
supplemental petition, alleging that part
of the furniture affected by his lien and
| privilege had been renewed from the leased
premises without his consent within the
preceding fifteen days. He prays for an
order OF provisional seizure, ordering the
sheriff to seize any and all property thus
removed out of premises No. l35 Washing
ton street, and for judgment as originally
prayed for.
Burke, answering the Intervention and
third opposition, denies all and singular his
allegations and for further answer saws
that the property on the premises in ques
ton is more than sufficient to meet the de-
mand of intervenor without interfering
with that which he claims the ownership
of. Prays for the dismissal of the interven-
ton. Power, the defendant, answers inter
venor's demand by general denial, and
prays that the same be dismissed.
The evidence shows that the bill filed by
the petitioner Burke, on which the articles
OF furniture are enumerated and their val
ues estimated, is, in form at least, sale to
him of those items. Power swears that it
was made in that form at his suggestion,
but only to afford Burke security for the
ha baA 1nauaI him,
sum he gave his note. Burke swears that
it was bona tide sale. He also brought
forward another witness who cOrrOborated
his statement. They were very positive on
the subject, and exhibited an advertisement
which showed that Power, in responding to
it, knew that Burke proposed to buy furni- |
ture, ETC., and not to loan money.
The intervenor offered and proved his |
lease as set up, and identified the property
seized as being the same that was on |
the leased promises, and which the lessons |
lien and privilege affected.
There Is no doubt Of the legality of the |
lessons privilege and right of pledge, be-
cause the law declares that affects not only |
the effects of the principal lessee or tenant, |
but also those belonging to third persons,
when they are contained in the house or
store by their consent, express or implied.
G. c., arts. 27O6 2707 and 32lS The inter-
venOr having brought himself strictly /
within the law which protects lessons, must |
have judgment as prayed for. The court |
can not impair his security, and simultane-
Ously and unavOidably his contract Of
lease, by decreeing him to retain his priv
ilege and right of pledge or portion only
OF the Effects because, as answered by |
plaintiff, there may be more than sufficient
to pay his demand.
The only question remaining to be con-
sidered relates to that of sale or no sale be-
tween Burke and defendant Power. On
the one hand there is a list of the effects aud
a transfer in the usual form of sale for
Sl5O, which two gentlemen swear was real,
and by which Powers Obligates himself to
deliver in good order when called upon to
to do so. There was then, no delivery at
the time OF the apparent sale and transfer.
1t was not necessary as between the par
ties. But outside of this, there was an
agreement between them by which Power
was given the right to redeem the property.
by the terms of the apparent sale Power
acknowledges payment of $3.50 for the
effects transferred, and yet Burke takes
Powers note tor that amount. as Power
owed him that sum. Now it would appear
that if the sale was real he had no use for
lor right to Powers note, because he was
July paid. He then and thereby stood in
he attitude of having been paid in full. |
md yet of holding note for the payment |
Vt the same sum over. Burke could have
the note and Power would
lave been obliged to pay it. Burke is
till the owner of the note, and received |
he payment of interest on it to May 25,
S73. 1t appears that all the transactions
between them after the transfer of the prop
rty and giving of the note, were made !
With reference to the note alone. Amid |
hese contradictions in the evidence, am
orced to look to the acts of the parties in
he execution of the written contract as
more certain solution of their intentions
,or this rule see G. c., art. 1856, and also
: l.. 5i6. and other authorities cited in
ien., p. 1912, No. Z. In Hill vs.. Maddox.
l A. Sill, the court held that "de-
endant on receiving sum of money
rom plaintiff gave the latter his
ote for the amount and written sale
furniture for a price purporting to be of
similar amount, but retained the furni |
lre agreeing to pay an annual sum for it's
se that the contract, though valid perhaps
5 an informal pledge, is not SO as a sale
'r want OF real price, and can not be
ntorced as such by plaintiff, while retain =
lg the note The only difference be-
ween that and the case before me is, that t
over did not agree "to pay an annual =
am for the use of the furniture, but only =
lie interest at three per cent per month on
le use of the money which Burke had |
'aned and for which Power had given his
ote. 1t will be seen, therefore, that there |
no difference in the principle of law I
,ere enunciated and the one applicable to
lis case. The act of sale in this case is
erfect in form, aud had the parties been T
ontent to let the transaction remain in r
nat position no difficulty could have arisen +
| its judicial Interpretation. Burke went &
'rther, and took a note for the same
mount, for which the sale had been
ade, then renewed it twice, and
last collected the interest due q
I II. Now it Ia very eyident that | =