53 Ala. 432 | Ala. | 1875
The important question presented by the record is, whether a landlord, whose rent remains unpaid, can maintain a special action on the case against the purchaser, with notice of the landlord’s lien, of cotton grown on the rented premises by sub-tenants, which the purchaser removes from the State and converts into money, thereby depriving the landlord of the opportunity of pursuing the statutory remedy by attachment of the cotton for the rent.
The common law method of distress for rent was abolished in this State in 1812. Clay’s Dig. 506, § 2. The English statute of 8 Anne, ch. 14, prohibiting the removal of goods and chattels levied by execution from any messuage, lands and tenements leased, until the payment of the rent due at the time of the levy, had been previously adopted here. Clay’s Dig. 210, § 45; Whidden v. Toulmin, 6 Ala. 104. In 1821, a statute enlarging this statute was enacted, prohibiting the levy of an execution on a crop grown on rented land, and its removal, until the payment or tender to the landlord of the rent due, not exceeding one year’s rent. Clay’s Dig. 506, section 3. These statutes did not create a lien in favor of the landlord; they did not narrow the rights of the tenant, or confer on the landlord a right or interest in or to the goods or chattels, or the crops grown on the premises, which could be asserted against the tenant, or those dealing with him. They merely gave the landlord a preference of payment, as between him and an execution creditor of the tenant. Frazier v. Thomas, 6 Ala. 169. In 1843, a statute was enacted prohibiting the removal from the premises of any crop grown on rented land until the payment or tender of all rent in arrear. If the crop was .removed, or the tenant was about removing it, without the consent of the landlord, and without payment or tender of the rent, the landlord was authorized to resort to an attachment against the crop. Clay’s Dig. 506, §§ 4, 5. This statute is substantially incorporated in the Code. R. C. §§ 2961-2963. The purpose was to create a lien on crops grown on •rented for the of the rent, and to provide
The landlord having a lien on the crop, and a stranger acquiring possession of it, with notice of the lien, holding it as the tenant held it, subject to the lien, is guilty of a tort, to the damage of the landlord, if he destroys, removes, or so converts or changes its character that the landlord cannot enforce his lien. For this tort, the landlord has no other appropriate remedy than an action on the case. Not having a right of property or a right of possession, he cannot maintain trespass, trover or detinue. To prevent a failure of justice, or to enforce a clear and well-defined legal right, “a plaintiff may maintain an action on the case whenever he shows that he has sustained damage from the tortious act of the defendant, for which established forms of law furnish no remedy.” Kelly v. McCaw, 29 Ala. 231, and authorities cited.
Under the English statute of 8 Anne, ch. 14, to which we have before referred, which merely gave to the landlord a priority of payment over an execution creditor levying on goods and chattels of the tenant found on the leased premises, if the sheriff, having notice that the rent was unpaid, removed the goods, he became liable to an action on the case at the suit of the landlord. Henchett v. Kimpson, 2 Wils. 140; Green v. Austin, 3 Camp. 260 ; Calvert v. Joliffe, 2 Barn. & Ad. 418 ; Colyer v. Speer, 2 Brod. & Bing. 67 (6 Eng. Com. Law, 21); Lane v. Crockett, 7 Price, 566. The statute creating a lien on the crop for the payment of the rent, a lien which is to prevail against the tenant and
It is insisted, however, by the appellee that the action will not lie, unless it was the intent or design of the purchaser, in the purchase and conversion of the crop, to defeat or deprive the landlord of his lien, and the remedy by attachment. If he purchased in good faith, and converted without any purpose to affect the right of the landlord, the action is not maintainable. Such seems to have been the view of the learned judge delivering the opinion in the case of Blum v. Jones, June term, 1874. The question did not arise in that case, and all there said in reference to it is mere dictum, by which we do not feel bound. When an unlawful act causes injury to another, the motive, intent or design of the wrong-doer is, as a general rule, material only in determining the quantum of damages. The absence of an evil motive may limit the recovery to actual damages, while the presence of an intent to do injury may aggravate the damages. When there is an unlawful injury to the rights of another, it is not essential to civil liability that the mind should concur in the act. 1 Chit. PI. 129. It is upon this principle that even a lunatic is liable civiliter for an injury to the person or property of another. In criminal proceedings the maxim applies, “actus non facit re-um, nisi mens sit rea.” In civil actions the intent is immaterial, if the act done be injurious to another. Harcraft v. Creasy, 2 East, 104. Whether the motive or purpose of the purchaser was to injure the landlord, to deprive him of his legal right and remedy, is not material. By removing or converting the crop, with notice of the landlord’s lien, he has done an unlaAvful act, injurious to the landlord, and must answer for the- damage his act produces.
The appellant was not a competent witness to prove the admissions or declarations of the deceased partner of the appellee. The estate of the deceased partner is interested in the result of the suit, and the statute of March 2, 1875 (Pamp. Acts 1874-5, p. 252), expressly prohibits either
The circuit court erred in the charge given, and the refusal to charge as requested ; and the judgment must be reversed and the cause remanded.