53 Miss. 662 | Miss. | 1876
delivered the opinion of the court.
This was a suit brought by the usee against Cloud, and
Counsel oh both sides have argued the case on the predicate of law, that if the agricultural lien claimed by McAlexander is older than the lien of the judgment under which Cloud, the constable, sold the cotton, then the plaintiff had established a cause of action, and ought to recover the value of the cotton, or so much as would be equal to the lien debt and interest. But does the “ Act for the encouragement of agriculture,” passed in 1867, give a property or right of property in the things to which the lien attaches ?
The “ lien ” is created by filing the contract, or a copy, in the Circuit Court clerk’s office, and by enrolling the abstract of it, as directed in the third section. Upon the doing of these two things the lien springs up. Cooper v. Frierson, 48 Miss. 800, 310. It is denominated a “ first lien.” The intendment is that it shall have preference over other incumbrances on the products of the soil. But this lien for the creditor, who has contributed means to make the crop, must be enforced within six months after the debt becomes due, or it expires. The statute gives a special remedy. Detinue or replevin would not lie at the suit of the creditor, because he has no property in the products. His right is to have satisfaction of his debt out of the cotton.
A lien is a privilege to pursue the thing, and subject it to the debt. It adheres to the thing, and the creditor may pursue it into the hands of a remote vendee, and his lien will be paramount to any title that the debtor could transfer. But the purchaser from the debtor does not thereby make himself liable personally to the creditor. Dozier v. Lewis, 27 Miss. 679. On the same principle, under the lien statutes approved April 5, 1872, and 17th April, 1873, it was held, in Westmoreland v. Wooten, 51 Miss. 825, that a purchaser of cotton from a tenant was not liable to the landlord for the value of the cotton, because ,the landlord had a lien for his rent.
There is no essential difference in the nature and privilege of a lien created by these statutes, and that arising under the
If McAlexander had the statutory lien, he could, by adopting the remedy given by the statute, and such other as the circumstances required, have prevented a sale of the cotton by the sheriff, and obtained the superior advantages of his lien. A sale by the constable could not defeat this priority. McAlexander could have followed the cotton in the hands ■ of the purchaser, and successfully have asserted it.
McAlexander, in his testimony, stated that he gave notice of his agricultural lien to the constable before and after he made the levy. That does not confer any greater or better right than he would have without notice. If McAlexander had the lien at all, then the world is chargeable with notice of it.
If these views are correct, it would be useless to consider the other questions made in the progress of the trial on the admissibility of evidence, the instructions to the jury and the refusal to grant a new trial.
We reverse the judgment, and, entering here such judgment as the court below ought to have rendered, sustain the demurrer to the declaration, and dismiss the suit.
