Saloy, being the owner of a plantation in Louisiana, leased it
to P. B. Dragon and Athanase Dragon. The Dragons arranged with
Bloch to furnish them with goods, supplies and moneys necessary to
carry on the plantation, for which he was to have a factor's lien
or privilege on the crops, which were also to be consigned to him
for sale. Saloy contracted before the same notary as follows:
"And here appeared and intervened herein Bertrand Saloy, who,
after having read and taken cognizance of what is hereinbefore
written, declared that he consents and agrees that his claim and
demands as lessor of the aforesaid 'Monsecours Plantation' shall be
subordinate and inferior in rank to the claims and privileges of
said Bloch as the furnisher of supplies or for advances furnished
under this contract, and that said Bloch shall be reimbursed from
the crops of 1883 made on said place the full amount of his
advances hereunder without regard and in preference to the demands
of said Saloy for the rental of said plantation, provided however
that three hundred and fifty sacks of seed rice shall remain or be
left on said plantation out of the crop of this year for the
purposes thereof for the year 1884."
Held:
(1) That under the laws of Louisiana, the privilege or lien of
the landlord over the crops of the tenant was superior to that of
the factor.
(2) That the effect of Saloy's agreement was only the waiver of
that priority, and that it did not commit him in any degree to the
fulfillment by the Dragons of their agreements with Bloch.
(3) That if Saloy asserted his privilege by taking possession of
the
Page 136 U. S. 339
crops (which he did), he thereby became liable to account to
Block, and that this liability could be enforced by a suit in
equity, to which the Dragons would be necessary parties.
(4) But that he was not liable therefor to Block in an action at
law, to which the Dragons were not parties.
The case is stated in the opinion.
MR. JUSTICE BRADLEY delivered the opinion of the Court.
This is an action on contract, brought in the Circuit Court of
the United States for the Eastern District of Louisiana by Simon
Bloch, a subject of the emperor of Germany, against Bertrand Saloy,
a citizen of Louisiana, to recover the sum of $6,266.23, with
interest and costs, alleged to be due from Saloy to the
plaintiff.
In his petition, the plaintiff avers that on the 26th of
January, 1883, he entered into contract with P. B. Dragon and A.
Dragon, by act before a notary, to furnish funds necessary for the
cultivation and furnishing of necessary supplies to a plantation in
the Parish of Plaquemines, in said state, known as "Monsecours,"
for the year 1883 in consideration of the interest and commissions
stipulated to be paid in said act; that said plantation was leased
by the Dragons from said Saloy, and that Saloy appeared in said
act, and made himself a party to said agreement, bound himself by
said act and said agreement to carry out the terms and conditions
thereof, and did waive and remit, in favor of petitioner, any and
all superior rights and claims that he had or might have against
said plantation, its buildings, etc., and the crop to be raised
thereon during the year 1883, as the lessor or landlord thereof, to
the
Page 136 U. S. 340
end that said land might be cultivated, the advances paid back
to petitioner, and, after payment of all legal claims, charges, and
expenses, the balance received should be paid over to said Saloy,
the landlord.
The petition then stated that Saloy, in disregard of his
contract, did, in December, 1883, proceed by action in the
Twenty-Fourth District Court in and for the Parish of Plaquemines
to a suit and seizure of the buildings, the growing crop, and the
crop in process of manufacture on said plantation, and placed the
sheriff in possession of the same, to the damage of petitioner
exceeding the sum due him; that he (Saloy) afterwards obtained an
order of the court to bond the property seized, and sold the same,
and converted it to his own use, without paying petitioner the
balance due him for his advances under said contract, which balance
was shown by a detailed account annexed to the petition, by which
it appeared that Bloch had received only $23,336.10 net proceeds of
the produce of the plantation, and had advanced in money and
supplies, including his interest and commissions, the sum of
$29,602.33, leaving a balance in his favor of $6,266.23.
The petition further states that, when Saloy so seized and
converted the property, the Dragons were not indebted to him, and
the said property was subject to the claim of the petitioner for
the balance due him on his said advances, which has not been paid
by said Dragons, who are without means to pay the same, or by
Saloy, and that said acts of Saloy are illegal, unjust, and
malicious, and that by his taking possession of said crop, stopping
the business, demoralizing his hands, and removing crop and
machinery, he deprived the Dragons of all power to comply with
their contract with the petitioner, and has injured and damaged the
petitioner in a sum far exceeding the sum due him by them, and so
the defendant, Saloy, is responsible for the said amount due
petitioner.
To this petition the defendant, Saloy, filed exceptions:
1st. No cause of action.
2d. Plaintiff cannot maintain his action until he has first
obtained judgment against the Dragons, who are necessary parties to
the suit.
Page 136 U. S. 341
3d. That the judgment rendered for Saloy against the Dragons
cannot be questioned collaterally, but only by appeal or action of
nullity to set aside the proceedings, over which this Court has no
jurisdiction.
4th. The release bond given by defendant in said suit to the
Dragons to get possession of the property cannot be litigated in
this suit.
5th. Exceptor specially pleads the judgment rendered in said
suit of
B. Saloy v. Pierre B. Dragon and A. Dragon, No.
617 of the docket of Twenty-Fourth Judicial District court for
Parish of Plaquemines as
res adjudicata of the necessity
for and validity of the writ of provisional seizure therein issued,
etc.; the record of that suit being filed with the exceptions.
Upon argument, these exceptions were overruled, and thereupon
Saloy filed an answer and plea in reconvention. In the answer, he
first made a general denial of the allegations of the petition, and
then denied specifically that his suit against the Dragons, his
tenants -- to-wit, No. 617 of the docket of Twenty-Fourth Judicial
District Court, etc. -- was in violation of any agreement made by
him with the plaintiff, or that his acts therein were injurious to
plaintiff, or illegal, unjust, or malicious, as charged, but he
avers that the plaintiff appeared and ratified defendant's acts by
furnishing the sheriff funds for cultivating the plantation and
harvesting and manufacturing the crop after the provisional
seizure, and subsequently received from the sheriff the amount of
such advances, which were paid by defendant.
In the plea of reconvention, the defendant set up his title as
landlord to Monsecours Plantation, and the lease by which the
Dragons held it from him, being at an annual rent of $4,800,
secured by notes of $4,800 each. He then set out the contract made
by the Dragons with the plaintiff Bloch, annexing a copy of it to
his plea. He further stated that, the Dragons being heavily in debt
and unable to pay, in October, 1883, two of their creditors sued
them, and sequestered and seized 100 barrels of rice and a
threshing machine, subject to reconvenor's landlord privilege and
that of said Bloch, and reconvenor intervened in that suit to
protect his interest, and
Page 136 U. S. 342
afterwards, in November, 1883, brought the suit complained of by
the plaintiff on two of the rent notes held by him, and obtained a
provisional seizure of the property subject to his lien as lessor,
and obtained judgment against the Dragons for the amount of the two
notes, less certain payments made on one of them, and that, from
the sale of the property seized, he only realized, after paying
claims of laborers, and costs and charges, the sum of $1,258.28,
which, being deducted from his judgment, still leaves due to him
the sum of $6,017. This amount he claims from the plaintiff, Bloch,
by way of reconvention, because, as he avers, Bloch received from
the proceeds of the crop of the plantation a surplus of more than
$7,000 over and above all his advances, commissions, and other
lawful claims.
The cause was tried before a jury on these issues, and a verdict
was found for the plaintiff of $3,500. Several bills of exceptions
were taken during the trial, but, from the view we have taken of
the case, it is unnecessary to advert to them. A radical exception
taken by the defendant at the beginning and always insisted upon is
that the action is not maintainable, and that if the defendant is
liable at all to the plaintiff, he cannot be made to respond in
this form of proceeding, in which the Dragons are not parties and
no judgment is shown to have been recovered against them. We are of
opinion that this exception is well taken, and in order to explain
our views, it is necessary to look a little more particularly at
the laws relating to the respective rights of lessors in regard to
the rents due to them, and of factors advancing moneys on supplies
for the cultivation of a plantation, and at the alleged contract on
which the suit is founded.
In treating of the subject of privileges, Rev. Civil Code of
Louisiana, by article 3217, declares as follows:
"The debts which are privileged on certain movables are the
following:"
"1. The appointments or salaries of the overseer for the current
year, on the crops of the year, and the proceeds thereof. Debts due
for necessary supplies furnished to any farm or plantation, and
debts due for money actually advanced
Page 136 U. S. 343
and used for the purchase of necessary supplies, and the payment
of necessary expenses, for any farm or plantation, on the crops of
the year and the proceeds thereof"
* * * *
"3. The rents of immovables, and the wages of laborers employed
in working the same, on the crops of the year, on the furniture
which is found in the house let, or on the farm, and on everything
which serves to the working of the farm."
* * * *
"The privileges granted by this article on the growing crop, in
favor of the classes of persons mentioned, shall be concurrent,
except the privilege in favor of the laborer, which shall be ranked
as the first privilege on the crop."
"ARTICLE 3218. The right which the lessor has over the products
of the estate, and on the movables which are found on the place
leased, for his rent, is of a higher nature than mere privilege.
The latter is only enforced on the price arising from the sale of
movables to which it applies. It does not enable the creditor to
take or keep the effects themselves specially. The lessor, on the
contrary, may take the effects themselves and retain them until he
is paid."
Under the title "Lease" in the same Code are the following
provisions:
"ARTICLE 2705. The lessor has, for the payment of his rent and
other obligations of the lease, a right of pledge on the movable
effects of the lessee which are found on the property leased."
"In the case of predial estates, this right embraces everything
that serves for the labors of the farm, the furniture of the
lessee's house, and the fruits produced during the lease of the
land."
* * * *
"ARTICLE 2709. In the exercise of this right, the lessor may
seize the objects which are subject to it before the lessee takes
them away, or within fifteen days after they are taken away, if
they continue to be the property of the lessee, and can be
identified. "
Page 136 U. S. 344
By an act of the Legislature of Louisiana approved March 21,
1874, it was, among other things, provided as follows:
"SECTION 1.
Be it enacted, etc., that in addition to
the privilege now conferred by law, any planter or farmer may
pledge or pawn his growing crop of cotton, sugar, or other
agricultural products for advances in money, goods, and necessary
supplies that he may require for the production of the same, by
entering into a written agreement to pledge the same and having the
agreement recorded in the office of the recorder of mortgages of
the parish where said cotton, sugar, or other agricultural product
is produced, which recorded contract shall give and confer on the
merchant or other person advancing money, goods, and necessary
supplies for the production of the said agricultural product, a
right of pledge upon the said crop, the same as if the said crop
had been in the possession of the pledgee,
provided that
the right of pledge thus conferred shall be subordinate to that of
the claim of the laborers for wages, and for the rent of the land
on which the crop was produced."
From these laws it will be seen that the privilege or pledge of
the landlord for his rent is superior to the privilege given by the
Civil Code to the factor who advances money or necessary supplies
to the planter, and, by the proviso of the act of 1874, it is still
made superior to the pledge which that law authorizes the planter
to make to the factor for his advances. It was in view of this
superior right of the lessor that Saloy was asked to join in a
contract between the Dragons, as planters of Monsecour, and Simon
Bloch, who agreed to make advances for the cultivation thereof.
This contract was made by an act passed before a notary on the 26th
of January, 1883, by which the two Dragons declared that,
"requiring to have goods and necessary supplies furnished and
moneys actually advanced to be used for the purchase of necessary
expenses and laborers to plant, cultivate, sow, gather, and
manufacture the crops of rice, sugar, molasses, and other products
to be made or raised during the present year on the Monsecour
Plantation, situated in the Parish of Plaquemines,
Page 136 U. S. 345
etc., they had contracted a loan of the sum of $7,500 of and
from Simon Bloch, of this city [New Orleans] and, as evidence of
such loan, the said Pierre B. Dragon had furnished three certain
promissory notes for the sum of $2,500 each, . . . which said notes
were delivered unto said Simon Bloch. . . . And in order to more
fully secure the punctual payment of all such advances and moneys
advanced or to be advanced as aforesaid, costs, charges, expenses,
commissions, and attorney's fees, a special lien and mortgage or
privilege was thereby granted and recognized for the full sum of
$15,000 on any and all crop or crops of rice, sugar, molasses, and
other products that might be planted, grown, raised, and gathered,
or made and manufactured during the year 1883 on the said
plantation."
The act also contained an obligation to ship and consign the
entire crop of rice, sugar, molasses, and other products made on
the said plantation during the year 1883 to the said mortgagee
(Bloch) in the City of New Orleans, whenever required or notified
so to do by him or his assigns, in default of which the mortgagee
or assigns were authorized to sequester the crops or proceeds
thereof, in whosoever hands the same might be, regardless of any
sale or transfer. After various other agreements and stipulations
contained in the act between the Dragons and Bloch, a final clause
was inserted containing an agreement or concession of Bertrand
Saloy, the defendant below, which laid the foundation of the
present action. It is here inserted verbatim:
"And here appeared and intervened herein Bertrand Saloy, who,
after having read and taken cognizance of what is hereinbefore
written, declared that he consents and agrees that his claim and
demands as lessor of the aforesaid Monsecour Plantation shall be
subordinate and inferior in rank to the claims and privileges of
said Bloch as the furnisher of supplies or for advances furnished
under this contract, and that said Bloch shall be reimbursed from
the crops of 1883 made on said place the full amount of his
advances hereunder, without regard and in preference to the demands
of said Saloy for the rental of said plantation, provided however
that three hundred and fifty sacks of seed rice shall remain or be
left on said plantation
Page 136 U. S. 346
out of the crop of this year for the purposes thereof for the
year 1884."
We do not think that this clause contains any such contract as
is averred in the petition of the plaintiff. It is there averred
that Saloy appeared in said act, and made himself a party to said
agreement, and bound himself by said act and said agreement to
carry out the terms and conditions thereof, etc.
There is nothing, as it seems to us, in the agreement of Saloy
which engages him to any guarantee of the contract of the Dragons
with Bloch; nothing to show that he committed himself in any degree
to the fulfillment of said agreements on the part of the Dragons.
It contains merely a waiver on his part of his priority in rank as
lessor of the plantation. He simply consents and agrees that his
claim shall be subordinate and inferior in rank to the claims and
privileges of Bloch, and that Bloch shall be reimbursed for his
advances without regard to any preference to the demands of said
Saloy. That is all. This consent and waiver only placed Saloy in
the position of a second encumbrancer, having himself a pledge on
the crops of the plantation, but subject to a superior pledge or
mortgage in favor of Bloch for his advances.
The question then arises whether Saloy was prevented by his said
waiver from instituting suit and seizure of the crop for his own
claim for rent. We know of no law or rule of practice in Louisiana
which prevented him from instituting such suit. It is true that the
net proceeds of the crop in his hands, resulting from his seizure
and sale thereof, was liable to the claim of Bloch.
The Code of Practice provides for sales by the sheriff subject
to the rights of those having prior liens or privileges, and the
purchaser at such sales takes the property subject to those liens,
and is credited for the amount thereof on the purchase money of the
adjudication. Articles 679, 683. And by article 709:
"The hypothecary action lies against the purchaser of a property
seized, which is subject to privileges or mortgages, in favor of
such creditors as have said privileges and mortgages, in the same
manner and under the same rules and restrictions as are applicable
to a third possessor of a mortgaged property. "
Page 136 U. S. 347
The crop and property sold by Saloy was undoubtedly subject to
the plaintiff's pledge to the extent of the amount due to him from
the Dragons, and he is entitled to an account from Saloy for that
amount to the extent of the net proceeds of said sale. But his
claim against Saloy is an equitable one, and in the United States
court can only be pursued on the equity side on a bill for an
account, in which all equitable deductions would be allowed for the
claims of laborers and other preferred creditors, and in such suit
an inquiry would be had as to the amount of Bloch's claim against
the Dragons, and they would be necessary parties. The debt for
which the plaintiff sues Saloy is their debt, and yet they are not
cited, and no judgment has been obtained against them. It seems to
us altogether an irregular proceeding.
he present suit is an action for damages against Saloy for
instituting proceedings and seizing the crops for the purpose of
collecting his rent. Such an action cannot be maintained, for Saloy
was not prevented by any law from instituting such proceedings for
the recovery of his rent. He did nothing that he was not entitled
to do, though he became liable to account to Bloch for the net
proceeds of the crop, as before mentioned, so far as might be
necessary for the satisfaction of Bloch's claim, when duly
adjudicated. In our judgment, therefore, the exception taken by
Saloy to the petition in this case was well founded, and the action
was not maintainable. The judgment of the circuit court is
Reversed, and the cause remanded with directions to enter
judgment for the defendant.