Hartsell v. Myers

57 Miss. 135 | Miss. | 1879

Chalmers, J.,

delivered the opinion of the court.

The justice of the peace, before whom the plaintiff made his affidavit for a writ of seizure, failed to sign his name to the jurat. Upon motion to dismiss the writ for want of an affidavit, the court permitted the justice to affix his name, in open court, upon his statement that the oath had been duly administered to, and taken by the affiant, and that he, the justice, had inadvertently neglected to sign the jurat. There was, we think, no error in this, under our liberal system of amendments of pleading and process.

The plaintiff’s demand for rent was based upon a written lease, and the principal point litigated was whether the rent was due. The lease was dated Oct. 11, 1876, and its term was for three years. it the defendant agreed to pay “ $800 per annum, for three years,” without specifying the times of payment. The writ was sued out on Nov. 10, 1878, upon the theory that the rent became due on the eleventh of October of each year. The defendant’s position is that the rent was not due until the end of each year, and consequently was not due for the current year at the date of the issuance of the writ. With a view of showing this, he proposed to prove that, though the contract was signed on Oct. 11, 1876, his term was not to commence, and in fact did not commence, until the first of January thereafter, and that there was another tenant on the place with an ungathered cotton crop on Oct. 11, 1876, who did not vacate until January, 1877. The testimony offered was excluded by the court as contradicting the written lease. This was erroneous. The lease did not fix the date of payment, nor did it fix the commencement or end of the term. True, it was dated Oct. 11, 1876, and was for three years; but immediately following the date were the figures, “1877, 1878, 1879,” which seems to imply that the term was to run for the calendar years represented by these figures. If so, it commenced on Jan. 1, 1877, and, no day of payment being specified, the rent became due at the end of each year. It was competent to show the situation and surroundings of the parties, with a view of fixing the day of payment, it not being expressed in the written instrument.

It was error, also, to give a personal judgment against the defendant in excess of the value of the property seized. The act of 1876 (Acts 1876 p. 109), regulating liens on crops, and providing for their enforcement, under the provisions of which this proceeding was instituted, contemplates only a subjection of property seized to the liens of the several parties interested, and nowhere makes provision for the rendition of personal judgments. However desirable .it might be to settle all the rights of the parties in one litigation, the lawgiver has provided only for a proceeding in rem, and, when the court has fully distributed the property seized and adjudged the costs, its jurisdiction under the statute is exhausted.

Reversed and remanded.

George, C. J., having been of counsel, did not participate in this decision.