75 So. 383 | Miss. | 1917
delivered the opinion of the court.
Appellant, as the administratrix of the' estate of her deceased husband, instituted this suit against appellee, as defendant in the court below, to recover the value
The opposing contentions of counsel arise chiefly 'from their disagreement as to what the testimony really proves. As we understand the testimony, the tenant, Skelton, executed a rent note fcr one hundred dollars in favor of Mr. Carberry, and Carberry after-wards advanced four dollars worth of supplies purchased by the tenant at Mr. Sanders’ store. In addition to these obligations, on March 21, 1914, Skelton executed a promissory note in favor of one Andrew J. Brown, or bearer, for fifty-four dollars, and to enable Skelton to borrow this money, the landlord, Mr. Car-berry, executed the note as a surety. The note has this notation: “For cash this day loaned to R. L. Skelton.” When the tenant had harvested a portion of his cotton crop for the year .1914, he, with the consent of the landlord, sold the greater portion of the cotton and took the proceeds to be delivered over to the landlord and applied to the indebtedness due by the tenant to the landlord. The proof shows that Skelton paid Carberry sixty-two dollars at one time and thirty-nine dollars at another. Mr. Carberry applied the - thirty-nine dollar payment upon the Brown note instead of upon the rent note, but the uncontradieted proof of the tenant is that in making the payment he requested that it be applied to the rent note. He says:
*554 “I asked him to let me finish paying the rent note out of the bale of cotton.”
The thirty-nine dollar credit was entered, on the A. J. Brown note November 23, 1914, and on December 21st thereafter Mr. Brown assigned this note without recourse to Mr. Carberry. As we understand the proof, then, the tenant exercised his right of demanding an application of the payment upon the rent note, and if he made the request at the time of the payment, it follows that the thirty-nine dollars should be treated by the court as having been applied to the original rent note, and, if so applied, the rent is satisfied and the plaintiff is left with simply a monetary demand, evidenced by the assigned Brown note. There is evidence that the rent was reduced from one hundred dollars to ninety dollars; that Carberry agreed “to knock off ten dollars on the .rent, making it ninety dollars.” This testimony comes from the plaintiff’s own witness, and she, of course, is bound by it. We do not think the landlord had any lien for the debt evidenced by the A. J. Brown note. This note was introduced .in evidence, and shows conclusively that Mr. Brown advanced the money, and that Carberry, the landlord, was only liable as a surety of the tenant. The case, then, falls within the principle announced by our court in Ellis v. Jones, 70 Miss. 60, 11 So'. 566. Before there is any lien for the proceeds of the Brown note, the relationship of debtor and creditor should exist between Skelton, the tenant, and Carberry, the landlord. The note itself shows that Brown was the creditor, and that the note was not assigned to the landlord until after the crop had been made and harvested. The statute itself places landlords in a favored class, and. is most liberal in its terms, and thefie is no occasion for the court, by int''T'-reation enlarge upon its provisions and to further safeguard the claims of a class already so well cared for by the literal terms of the statute.
Affirmed.
