36 S.C. 274 | S.C. | 1892
The opinion of the court was- delivered by
On December 18, 1885, S. L Peacock executed to the “New England Mortgage Security Company” a mortgage of the land described in the complaint, to secure the payment of $1,000, payable on December 1st, 1890, together with interest, &c. The said mortgage contained a power
On February 8, 1890, the said Peacock executed to McNab & Walker an agricultural lien on all the crops made during said year on said plantation, which was duly filed on February 11th, 1890, in the proper office and registered according to law. On ■ July 23, 1890, a demand was made by the plaintiff on Peacock for possession of the premises, or paymenf of the rent. The de- ■ mand being refused, the plaintiff instituted proceedings for eject-■ ment against Peacock, which were finally dismissed — for what cause does not appear. Afterwards the plaintiff eaused a dis- - tress warrant to be issued to seize the propery of the said Peacock to satisfy the rent claimed to be in arrear, $270. Under this warrant the plaintiff received cotton, corn, fodder, gathered and ungathered, of the crops of said Peacock, made upon the1 said plantation during the year 1890. Afterwards, on December 12, 1890, the defendants, McNab &■ Walker, caused to be issued by the clerk of the court .a warrant on their agricultural lien against the said Peacock, directed to the sheriff of the county, commanding him to seize the crops of said Peacock covered by said lien, and after due notice to sell the same, and out of the - proceeds thereof pay over to the defendants, McNab & Walker;- ' the sum of $150.31, in extinguishment of -the amount due them upon said lien. The sheriff seized the crops which had been pre-1
The cause came on to be heard by his honor, Judge Izlar, who, holding that the lien created by the distress warrant only dated from the time of levying the distress, October, 1890, and at that time there was a vested and subsisting agricultural lien for advances (February 8, 1890) upon the crops of Peacock in favor of defendants, and that under and by virtue of a warrant (December, 1890) issued on this lien for advances, the crops of Peacock raised upon the land were sold — decided that the defendants, McNab & Walker, had a prior and preferred lien upon the crops raised upon the uBuist place” in the year 1890, and dismissed the complaint with costs.
From this decision the plaintiff appeals to this court upon grounds as follows: 1. Because his honor erred in holding that upon the sale of the mortgaged premises and execution of conveyance to the purchaser, the relation of landlord and tenant was not established between the mortgagor, Peacock, and the purchaser, Brewster. 2. In holding that the stipulation in the mortgage for rent was intended merely as a matter of estoppel between the mortgagor and the purchaser of the premises. 3. In holding that plaintiff did not acquire a statutory lien as provided by the act of 1885, upon the crops of Peacock made during the year-1890. 4. In holding that the tenancy existing between Brewster, the plaintiff, and Peacock, the mortgagor, was not such as that contemplated by act of 1885. 5. In holding that there was no renting by the plaintiff to said Peacock of the lands mentioned for agricultural purposes for the year 1890. 6. In holding that the lien created upon the property of the tenant would only date from the time of levying the distress. 7. In holding that McNab & Walker, having the prior and preferred lien, were entitled to priority of payment out of the proceeds of sale of Peacock’s crops.
The rent began to fall due monthly, before the agricultural lien of the defendants was executed. The distress warrant of the landlord was levied first, and there can be no doubt that the defendants! bad, notice. . The property belonged to the tenant, subject only to the liens,, and after the distress warrant and notice given to the defendants, it seems to us that, under the above provision, we cannot sanction the taking of the property out of the possession of the landlord, without the rent being first paid as therein required. Margart v. Swift, 3 McCord, 378; Ayers v. DePrass, 2 Speer, 370; 1 McMull., 194; Harper, 337; 4 Rich.,
The judgment of this court is, that the judgment of the Circuit Court be reversed, and the cause remanded to the Circuit for such further orders as may be necessary to carry out the conclusions herein announced.