70 Miss. 60 | Miss. | 1892
delivered the opinion of the court.
The peremptory instruction given for the plaintiff should! have been refused, and that asked by the defendant should have been given.
There is no evidence that the plaintiff ever advanced any supplies to her tenant, Lee "Williams.
The evidence is that the firm of D. II. & H. Jones, of which, her husband was a member, advanced supplies to Williams,, taking as security a deed of trust on his crop and other-property, and, after this suit had been instituted, charged to-Mrs. Jones the amount of Williams’ account. Mrs. Jones,, on January 1, 1891, wrote to D. II. & H. Jones that “if any of the tenants, croppers or laborers on any of my places in Hinds or Rankin counties, who may desire supplies for the-year 1891, please furnish them in a reasonable quantity, and I will be responsible for the same.” At most, this was a letter of guaranty in reference to debts to be contracted by the tenants in indefinite amounts, and she was entitled to notice of its acceptance within a reasonable time, without which she was not bound. Williams v. Staton, 5 S. & M., 347; Montgomery v. Kellogg, 43 Miss., 486.
There is no evidence that Mrs. Jones had any notice that' her guaranty had been accepted by D. II. & II. Jones until, after this suit had been brought.
But, if notice had been given, and Mrs. Jones’ liability fixed for the debts contracted by the tenants, she would not..
The lien given by the statute for supplies is to secure a debt due to the landlord, and the existence of such debt is necessary to the existence of the lien. Neither the letter nor spirit of the statute warrants its application to debts due by the tenant to third persons, even though the landlord be liable as surety or guarantor for the tenant. The landlord here was not creditor to the tenant. She was, if any thing, debtor with the tenant to D. H. & H. Jones. These creditors had secured from the tenant a deed of trust upon his crop and other property, and, upon payment of the tenant’s debt by Mrs. Jones, the guarantoi’, she, upon familiar principles, was subrogated tt> the security held by the creditors against the principal debtor. But she does not, in this suit, endeavor to enforce the security thus obtained. XJpon her objection, the-court excluded evidence of its existence when offered, and permitted a recovery by the plaintiff as landlord enforcing a right which can only arise from the existence of the lien given by § 1301 of the code.
We do not decide that the lien exists only when the landlord deals directly with the tenant. If the landlord makes advances through a third person to the tenant, we see no reason why the lien should not exist; but, in any event, the circumstances must be such as to create a debt due from the tenant to the landlord. It is not sufficient that the tenant and landlord be indebted to such third person.'
The court did not err in excluding as evidence the deed of trust executed by Williams, the tenant, to,D. H. & H. Jones. 'If the plaintiff had sought recovery upon the theory that D.
The judgment is reversed, and cause remanded.
