Cohn v. Smith, 64 Miss. 816

64 Miss. 816 | Miss. | 1887

CoopjeR, C. J.,

delivered the opinion of the court.

In 1884 the plaintiff (appellee here) leased her farm to her son, R. N. Fox, for the sum of two hundred dollars, to be paid at the end of the year. In October Fox sold to the defendant (appellant here) three bales of cotton grown on the premises that year, the defendant at the time having knowledge of the fact that Fox was tenant to the plaintiff. He made no inquiry either of Fox or the plaintiff as to payment of the rent, but had heard, as he says, that a part of the rent had been paid, and did not know but that all had been paid.

The principal question presented is whether a landlord may recover against one thus purchasing the agricultural products grown on the premises. By § 1301 of the code it is declared that “ every lessor of land shall have a lien on all the agricultural products of the leased premises, however and by whomsoever produced, to secure the .payment of the rent, and this lien shall be paramount to all other liens, claims, or demands of any kind upon such products, etc.” By other sections a remedy by distress is given for the enforcement of the lien thus created.

By the act of March 13, 1884 (Acts, page 80), § 1362 of the code is applied to § 1301 and is to be read as part thereof; that section is: “Any person who, with notice of such lien, and with intent to defeat or impair it, shall remove from the premises on which it was produced, or shall conceal, or aid or assist to remove or conceal, anything subject to such lien, without the consent of such person, shall, upon conviction, be punished by a fine of not more than five hundred dollars, etc.”

Since the act of 1884 the lien of the landlord, his rights and remedies, have been substantially those secured by the agricultural lien laws of 1872 and 1873, which underwent examination and decision by this court in the cases of Westmoreland v. Wooten, 51 Miss. 825 ; Wooten v. Gwin, 56 Miss. 423, and Dunn v. Kelly, 57 Miss. 825. In the first of these cases it was decided by a unanimous court that the lien given by the acts of 1872 and 1873 did not confer upon the lienor such right in or to the property as to support an action of trover or assumpsit against one who purchased from the tenant the property subject to the lien. Whether one who colluded with the tenant to aid him in defeating the lien by sale or removal of the property could be held liable by the landlord for the injury done him, by an appropriate action, was expressly left an open question. The judgment recovered by the landlord having been reversed, he amended his declaration by converting the action from one in assumpsit to an action on the case for the injury ; another trial was had resulting in a judgment in favor of the purchaser, and the case was again appealed to this court. It then appeared in evidence that when Westmoreland purchased the cotton he did not know that Wooten had any claim upon it, nor was he cognizant of any facts that would suggest inquiry, but before he shipped it out of this State Wooten informed him of his claim, demanded possession, and sued out a writ of seizure as provided by the statute. Westmoreland refused to deliver the cotton or to point it out to the officer having the writ, but shipped it out of the .State. .On these facts the judges differed in opinion as to the law, Simrall, C. J., holding that the purchaser was not liable because he did not participate in the “ removal of the cotton from the demised premises,” that being the specific act made penal by the law. He thought if he had so participated he would have been liable in an action of trespass on the case for the injury done the landlord by such illegal act. Campbell, J., was of opinion -that the remedy provided by the statute which created the right was exclusive; that the penal clause of the statute was intended only to strengthen and preserve the remedy afforded by making the act of removal, so that the remedy might not be available, punishable, but that no new remedy could spring from the unlawful act. Chalmers, J., dissented from the result reached by the majority of the court on the ground that , any removal of the property, either from the premises or from the State, was penal; that it was a violation of a legal right of the landlord, and that for such injury he might recover • by an action on the case. The fact that Westmoreland bought without notice pf the lien he thought immaterial, for the reason that while the property was in his possession and subject to the lien if it could be seized, he had actual notice of the rights of the landlord and willfully shipped the cotton beyond the jurisdiction of the court.

. In .the following year Simrall, C. J., having retired from the bench and George, C. J., being then a member of the court, the case of Dunn v. Kelly was decided. In that case the purchaser bought with knowledge of the lien of the landlord or with knowledge of faets sufficient to put him on inquiry. It did not appear that he had either participated in removing the property from the demised premises or had shipped it beyond the State. George, C. J., and Chalmers, J., maintained the right of the landlord to recover in an action of trespass on the case, while Campbell, J., dissented, adhering to the views announced in the case of Wooten v. Gwin. In Dunn v. Kelly, George, C. J., iu delivering the opinion of the court, deduced from the opinion of Simrall, C. J., in the case of Westmoreland v. Gwin, the conclusion that a .purchaser with notice was liable to an action on the case, whether he had or had not joined with the tenant in removing the property from the demised premises, and concurred in the correctness of the legal proposition he attributed to Simrall’s opinion. More than seven years have passed since the decision of Dunn v. Kelly, and whether we concur in the view there announced, we think the decision should not be disturbed; The question involved is one of great practical importance, and we must assume that the public have been governed by the law as declared in that case since its decision. Where judges have entertained such conflicting opinions it cannot be said with confidence that the question is free from doubt, and- in such cases the rule of stare decisis should prevail.

On the trial of this case the defendant proposed to prove by a witness, that after the purchase by the defendant of the cotton from the tenant, the landlord admitted to him that she had consented to the tenant’s selling the cotton to the defendant, because she desired him to discharge a debt he owed him. Objection was made and sustained to this evidence because the waiver was not shown to have been on any sufficient consideration; nor wás it pretended that the purchaser had relied upon' such consent or changed his situation because thereof. The evidence should have been admitted. If there was no sufficient, consideration for the waiver the landlord might have withdrawn it at any time before it was acted on by the tenant. But if the sale was made by the tenant at a time when he was authorized to sell by the landlord, no right of hers was violated thereby and no cause of action arose against the purchaser. The statute only imposes the penalty when the disposition of the property is “without the consent of such person.” .Volenti non Jit injuria.

The judgment is reversed and cause remanded.