113 Ga. 304 | Ga. | 1901
On tbe 5th of January, 1898, the Merchants National Bank of Rome purchased, at sheriff’s sale, certain lands, sold as the property of M. A. Taylor, the sheriff on the same day executing to the bank a deed to the property. This deed was duly recorded on October 24th, 1898. On January 7th, 1899, the bank, not having been put in possession of the property, Taylor, who still held the same, rented a part of it to B. G. Camp for the year 1899. Camp gave to Taylor two promissory notes, due in November thereafter, the notes specifying that they were for rent of Taylor’s farm for the year 1899, and being payable to Taylor or bearer. In March of the same year Taylor sold and transferred, in writing, these notes to West & Co. In August, 1899, the bank applied for and obtained from the superior court an order directing the sheriff to put it in possession of the premises in question, which it had purchased at the sheriff’s sale. This order was executed and the bank put in possession September the 9th, 1899. Camp did not leave the farm, but on that day entered into a contract with .the bank, which, after reciting the purchase of the property by the bank and the granting of the order to put it in possession, states that, by reason of these facts, he “ does hereby make surrender of his said holding as tenant of said Taylor, and does hereby recognize that said bank has been put in possession by said sheriff, and that defendant has been dispossessed, and that the future possession and occupancy of said property by defendant [is] as tenant of said bank.” At this time the crops on the premises had not matured. On October 10th, 1899,.
This case turns upon the question whether West & Co., the transferees of the rent notes, ever acquired a landlord’s lien on the crops levied upon. A landlord has a special lien for rent on crops made on the land rented from’'him, which dates from the maturity of the crops, and the Civil Code, §2798,provides: “Whenever any contract for rent is evidenced by writing and is transferred by written assignment before the maturity of the crops on the land rented, the special lien in favor of landlords shall, on the maturity of the crops, arise in favor of the transferee of such rent contract in the same manner as it would have done in favor of the landlord had no transfer been made.” If, under the facts of the case, no lien would have arisen in favor of Taylor if he had not transferred the notes, then none arose in favor of' the transferees; for under tbe terms of the above-quoted statute the special lien in favor of the landlord arises in favqUoTa transferee of tne rent contract, upon the maturity of the crons, in the same manner as it would have done in favor of the nn t^psfer had been made. If no transfer had been madSTin what manner would, a special lien rrpon the crops have arisen in Taylor’s favor ? In our opinion, no lien would have arisen in his favor, for the reason that, before the maturity of the crops, there was a total failure of consideration of the rent contract, by-reason of the eviction of Camp by the bank, the real owner of the premises; and the consideration of the contract having wholly failed, Taylor could never have acquired a lien for rent. Taylor could not transfer what he could not have acquired, and therefore West & Co. never obtained any lien. The case of Ferguson v. Hardy, 59 Ga. 758, is somewhat in point. There it was held: “Where rented land, upon which there was a growing crop, was sold under an execution against the landlord, and the tenant evicted, the considera
Judgment reversed-