145 Ky. 279 | Ky. Ct. App. | 1911
Opinion of the Court by
Affirming. .
In March, 1909, Charles Browning entered into an oral renting contract with J. C. Crawford for a term beginning in March, 1909. By the contract Crawford was to furnish Browning a house in which to live, about twelve acres of land to be cultivated in tobacco and about fifteen acres to be cultivated in corn. Browning was to cultivate the corn; each was to have one-half the crop. Browning was to cultivate, house and strip the tobacco, and each of them was to have one-half of it; Browning was to furnish the teams necessary to the cultivation of the crops and all the labor necessary. Crawford was to furnish a barn for storing the tobacco. Browning moved into the house; it became necessary for him to procure a team; he purchased two horses for $180, and executed his notes therefor, Crawford becoming his surety on the notes. When the notes became due, Browning not being able to pay them, they were paid by Crawford. Browning was without means to procure the necessities for the support of his family while cultivating the crops, and at his instance, Crawford made arrangements with a merchant under which Browning got what he needed on Crawford’s credit, and Browning being unable to pay the bill, which amounted to $324.78, Crawford paid it. On September 1,1910, all the crop of tobacco remaining unsold was pooled by them with the Burley Tobacco Society and the tobacco was delivered
“A landlord shall have a superior lien, against which the tenant shall not be entitled to any exemption, upon the whole crop of the tenant raised upon the leased or rented premises to reimburse him for money or property furnished to the tenant to enable him to raise the crop, or to subsist while carrying out his contract of tenancy. But the lien of the landlord shall not continue for more than one hundred and twenty days after the expiration of the term, and if the property upon which there is a lien be removed openly from the leased premises, and without fraudulent intent and not returned, the landlord shall have a superior lien upon the property so removed for fifteen days from the date of its removal, and may enforce his lien against the property whenever found.”
The court on final hearing entered a judgment in favor of Crawford; Browning appeals.
It is insisted for Browning that the term of his contract was for one year and expired in March, 1910, or more than four months before the action was brought in September 1910, and that therefore Crawford had no lien on the crop under the statute. It is insisted for Crawford that Browning was to cultivate, house and strip the tobacco; that the term so far as the tobacco was concerned did not end until the tobacco was ready for market, and that Crawford did not lose his lien while the
It is insisted that as Browning asserted a lien upon the tobacco, he could not take out a general attachment under Section 194 of the Code and serve this upon the Board of Control, but that he could only take out a specific attachment under section 249 of the Code. The case of Garr Scott and Co. v. Lyons, 99 Ky., 672, is relied on. In that case it was held that the lien creditor could take out a general attachment, but that the general attachment could not be levied on the property on which he asserted a lien. Upon reconsidering the matter we conclude that the latter ruling is in conflict with the statute.
By Section 194 of the Code the plaintiff m'ay have an attachment against the property of the defendant, if, among other things, he is a non-resident of the State or has departed therefrom with intent to defraud his creditors or has disposed of his property with a fraudulent intent to cheat his creditors, or is about to sell or remove it from the State with that intent. The statute is clearly intended to give all parties the right to take out a, general attachment when the grounds specified in the
“The order of attachment shall be directed and delivered to the sheriff, with as many copies thereof as the plaintiff may direct. It shall require him to attach and safely keep the property of the defendant in his county not exempt from execution, or'so much thereof as will satisfy the plaintiff’s claim specified in his affidavit, which shall be stated in the order, and the probable costs of the action, not exceeding thirty dollars; also to summon the garnishees to answer in the action on the return-day of the order, and to make due return thereof. ’ ’
When an attachment is issued in the form as above provided, it is the duty of the officer to follow his writ and to attach and safely keep the property of the defendant in his county and to subject it to execution or so much thereof as may be necessary. That this is meant is placed beyond question by Section 212 which provides:
‘An attachment binds the defendant’s property in_the county, which might be seized under an execution against him, from the time of the delivery of the order to the sheriff, in the same manner as an execution would bind it; and the lien of the plaintiff is completed upon any property or demand of the defendant by executing the order upon it in the manner directed in this article. ’ ’
Judgment affirmed.