A rehearing was granted in this case for the purpose of correcting an error in the statement of the facts made in our original opinion. A re-examination of the act of sale from Caporal to Leopard and Limerick shows that the vendees did not assume the old lease from plaintiff lessors to Caporal, at the date of this sale, April 15, 1922. On the contrary, it is stated in said act of sale that "the said Gregory Caporal does hereby surrender his lease on the above described building as of date April 15, 1922."
The defendant Limerick testifies that a new lease was entered into between plaintiff lessors and Leopard and himself on April 15, 1922. The suit for rent in this case is based upon a new contract of lease, commencing April 15, 1922, and continuing for a period of two years, as alleged in the petition for a writ of provisional seizure.
The lease of plaintiffs to Caporal antedates the chattel mortgage of Papas, the intervener, and primes the lien arising from said mortgage, which was duly recorded July 11, 1921.
This is the true state of facts existing at the date of the sale from Caporal, the former lessee of plaintiffs, to Leopard and Limerick, the new tenants.
The act of sale has annexed to it the following stipulation: "The undersigned hereby guarantees that the title to the above property is unencumbered, free from any claims by Caporal's creditors, and that the money and notes herein delivered will be applied to the satisfaction of Caporal's creditors."
This stipulation is signed "D. Laurients."
In the answer filed by plaintiff lessors to the intervention of Papas, claiming a superior lien by virtue of his chattel mortgage, the stipulation or guaranty that the title of the property sold by Caporal is unencumbered is pleaded as an estoppel to the right of the intervener, a creditor of Caporal, at the date of said sale, to assert a lien priming that of plaintiff lessors. *Page 48
It, therefore, becomes necessary, under the facts of the case, for us to pass upon the plea of estoppel.
Mr. A.H. Van Hook, the representative of Mrs. Susie Rose Lloyd, one of the lessors, E.H. Randolph, Esq., one of the lessors, and member of the law firm representing the other lessors, in filing plea of estoppel, Tony Papas, the intervener, Laurients, who signed the guaranty, Caporal, the vendor, and Leopard and Limerick, the vendees, were all present at the sale made by Caporal to said vendees on April 15, 1922. Papas had married the niece of Laurients, who was the representative and adviser of Papas at this sale. It is unnecessary to enter into any discussion as to the admissibility of parol evidence to prove the agency of Laurients, who had signed the guaranty individually, as the record shows that no issue as to the fact of Laurients' agency was made in the case. Counsel for Papas, intervener, propounded to Laurients, on direct examination, the following question: "Did you agree, as the representative of Tony Papas, to take these notes in the place of the original ones?"
On cross-examination by counsel for plaintiff lessors, Laurients testified that he had no interest in the chattel mortgage notes that Papas, intervener, was suing on, that he advised and represented Papas, and that he, Laurients, "figured in all of these transactions." It is made plain by the testimony of Limerick that he would not have purchased the stock and fixtures in the "Vaky Café" from Caporal, without the guaranty signed by Laurients, and which was demanded by Limerick at the time of the sale.
It is equally clear that plaintiff lessors would not have surrendered their superior lien on the stock and fixtures of Caporal, their former tenant, by consenting to the cancellation of the old lease, had not the guaranty been given that the title was unencumbered and free from the claims of Caporal's creditors; Papas, the intervener, being, at the time, one of these creditors. *Page 49
The presence of both Papas and Laurients, at this sale, the presence on that occasion of Mr. A.H. Van Hook, the representative of the lessor, Mrs. Susie Rose Lloyd, and the presence of E.H. Randolph, Esq., one of the lessors, and attorney for the rest, in filing plea of estoppel, leaves no doubt as to the validity and binding effect of said plea. No objection having been made at the time by Papas, the intervener, to the written guaranty, or to the representation by Laurients of him as agent, the plaintiff lessors, relying upon the faith of said guaranty, surrendered a superior lien as lessors under the old lease, which was canceled, and a new lease to Limerick and Leopard, with lien inferior to that of Papas, the chattel mortgage creditor, was consented to and perfected. It would be highly inequitable under such a state of facts to recognize the lien arising from the chattel mortgage of Papas, intervener, as superior in rank to that of plaintiff lessors, to the injury of the latter. If Papas had not been present at the time of said sale and had not acquiesced in the proceedings, and had objected at the trial to parol proof of the agency of Laurients, who had signed the guaranty individually, a different state of facts would have been presented by the record in this case.
For the reasons assigned, the plea of estoppel is sustained, and our former decree is reinstated and made the final judgment of the court.
ROGERS, J., concurs and hands down an opinion, in which the CHIEF JUSTICE concurs.
THOMPSON, J., recused.