Buckner v. Beaird

The opinion of the court was delivered by

Plaintiff, alleging that he was during the year 1877 half-owner of the Campo Bello plantation, claims of defendant $1250, ‘being one half of the rent thereof, as agreed upon by a verbal lease with defendant. He prays judgment accordingly.

A judgment by default was entered against defendant on 8th April, 1879. On 12th April, the defendant filed an exception, to -the effect that plaintiff could not maintain this suit, for the reason that if he, defend■ant, is indebted for rent, he is so to one Joseph Henry and plaintiff as .joint obligees. This exception was overruled, and defendant filed his ■answer. Defendant offered no proof in support of his exception. It was not apparent on the face of plaintiff’s petition ; for non constat that plaintiff did not lease his half of the place by separate contract. Joint owners of real estate are not partners, and they may well lease separately for the same or different sums.

The court properly overruled the exception on this ground, even admitting it to be pleadable after default. It is not necessary, therefore, do discuss the question as to the right ©f one joint obligee to sue to enforce his virile part of a debt, since on trial of the exception no proof .showed that state of facts to exist.

On trial of the merits, it appeared in evidence that B. T. Buckner *228and Jos. Henry owned the plantation in common, and that it was leased to defendant for $2500. That Henry had demanded, and the defendant had paid Mm his half of the rent. In other words, it appears that-Beaird had himself undertaken to settle with each creditor the amount of his share in the rent, and had himself divided what he now contends was indivisible. He shows by his own testimony that Henry has now no possible interest in the claim here sought to be enforced. We see no occasion, therefore, for entering into an examination and discussion of that most difficult title of our Code, treating of divisible and indivisible obligations, and of their enforcement. The party who intends to rely upon technicalities should be careful to keep himself within the technical rules he invokes. Defendant admits in his brief that he owes plaintiff the amount sued for, and the judgment below condemned him to pay it. Appellees have asked damages as frivolous appeal. The appeal is only devolutive, and we think the case, therefore, not one.requiring such penalty.

The judgment is affirmed with costs.