Hulett v. Stockwell

27 Mo. App. 328 | Mo. Ct. App. | 1887

Philips, P. J.

It seems to be conceded by both parties that the trial court was influenced in its conclusion by holding that the action would not lie, in this, form,’ to enforce the landlord’s lien, the facts being such, as to authorize the remedy by attachment, which is exclusive. In this view we cannot concur. Section 3083, Revised Statutes, declares that: “Every landlord shall have a lien upon the crops grown on the demised premises in any year, for the rent that shall accrue for such year, and such lien shall continue for eight months, after . such rent shall become due and payable, and no. longer.” Section 3091 authorizes the landlord, in certain contingencies, when he deems his rent endangered by removal, or threatened removal, from the premises of the crops thereon, to resort to the action of attachment.. But this latter remedy is only permissive, and not exclusive. The lien given by the statute in favor of the landlord may be enforced by an action, in the proper jurisdiction, as any other lien given by law or in equity. No other view has ever been entertained by the supreme court touching this question. It was early held, in Knox v. Hunt et al. (18 Mo. 243), that the landlord might take judicial steps, by legal process, to enforce his lien. In Saunders et al. v. Oehlhausen (51 Mo. 163, 165), it is held that the process of attachment authorized by the statute is not exclusive. And the claim by interplea was upheld in that case.

In Price v. Roetzel (56 Mo. 500), the right to proceed by petition to the circuit court to enforce the lien is expressly recognized, and the learned judge who delivered the opinion said: “ The suit was to enforce such lien, and in aid of it an attachment was obtained, though absolutely unnecessary, since the court could have enjoined any sale of the crops by the administrator, and had the right to order their sale as perishable .property by the sheriff, and their proceeds held subject to the result of the suit.” So it was held by Henry, J., in Hubbard v. Moss (65 Mo. 652): “ We do not think that the attachment was a remedy provided for enforcing the lien, for the lien may be in full force and the landlord have no right to an attachment at all.”

Respondents suggest that these rulings of the Supreme Court were made under the General Statutes of 1865, prior to the amendment of 1877. The statute of 1865 contained the provision of section 3083, Revised Statutes of 1879, hereinbefore quoted. The amendment of 1877 added this independent sentence to the section: “ When the demised premises, or any portion thereof, are used for the purpose of growing nursery stock, a lien shall exist and continue on such stock until the same shall have been removed from the premises and sold, and such, lien may be enforced by attachment in the manner hereinafter provided.” This was to give a lien on this species of product grown on the demised premises distinct in its features from the other more general lien, as it was to exist no longer than up to the time and event of a removal from the premises and sale to some third party ; and the amendment then proceeded to give the landlord, also, the right of attachment for this new lien as well as for the lien in the preceding part of the section. But this provision in no sense qualified the law, as it had been interpreted respecting the enforcement of the lien by suit without attachment.

It occurs to me that it should be the unquestioned office of the court, in maintaining the action for the enforcement of the lien, to exercise its ancient and customary chancery jurisdiction of restraining the defendant, during the litigation respecting the enforcement of the lien, fronfidestroying, removing, or impairing the subject upon which the lien was to operate. Otherwise its judgment enforcing the lien would be unavailing and an empty ceremony.

The sub-tenants are as much bound for the rent money, and subject to the landlord ’ s lien, to the extent of the premises held by them, as Stockwell. Hicks v. Martin, 25 Mo. App. 359. The dismissal of the suit, as to them, was wrong in any view of the case. If they rely upon any estoppel, they should plead it. The defence set up by them is too uncertain and indefinite to tender any such issue. It bears on its face evidence of straining after some intangible and unsubstantial matter of excuse. Even had the court found the grounds of injunction not sustained by the evidence, it should have proceeded to judgment on the petition for the debt, and for the enforcement of the lien against the property.

The judgment is reversed, and the cause remanded for further proceeding conformably to this opinion.

All concur.