66 So. 892 | Ala. Ct. App. | 1914
The appellees, T. L., J. E., and O. M. Wright, sued out an attachment against one Mooney, for the purpose of enforcing an alleged landlord’s lien claimed by them for advances — all rents having been previously paid — and caused the writ to be levied upon the crops grown by said Mooney during the year 1912 on the rented premises. The appellants, Landrum & Co., interposed a claim to the property, which claim was predicated upon a mortgage shown without dispute to be unsatisfied and to have been duly executed to the claimants by Mooney on January 15, 1912, long before the issuance and levy of the attachment. The right of the plaintiffs to subject the property levied upon to the satisfaction of the attachment writ depended, therefore,
The material facts relied on as constituting such landlord’s lien in the plaintiffs were without dispute, and, at the conclusion of the evidence, the court, at the request of plaintiffs, gave the general affirmative charge in their favor. The correctness of its action in doing this is the principal point before us for decision. Summarizing these facts, they may be stated, in substance, to be as follows: The defendant in attachment, said Mooney, during-the year 1910 lived on and cultivated as a tenant the lands of one W. A. Langley, and the latter as landlord, in order to enable Mooney to procure supplies with which to make a crop that year, applied, with Mooney’s consent, to the Camp Hill Supply Company to furnish them, which they did, directly to Mooney, entering .the charge therefor upon their books against Mooney and Langley jointly, and looking to both, as was undisputed, for payment — Langley having' at the time verbally agreed “to see it [the account for such supplies] paid.” At the end of the year Mooney paid up all rent due Langley, but failed to pay either him or the Camp Hill Supply Company for the advances mentioned, and desired to move himself and his farm produce (consisting of corn, fodder, cotton seed, etc., raised that year on Langley’s place and of the aggregate value of about $200) to the plantation of one J. T. Wright, from whom he, Mooney, had rented land for the following year, 1911. Langley, as landlord, interposed an objection and forbade Mooney to move any of the produce mentioned, until he, Mooney, first paid him for the said supplies furnished by the Camp Hill Supply Company (amount-
Our statute gives to the landlord a lien, which continues and attaches to the crop of the succeeding year — “for advances made in money, or other thing of value, either by him directly, or by another at his instance and request for which he became legally bound or liable at or before the time such advances were made, for the sustenance or well-being of the tenant or his family, or for preparing the ground for cultivation, or for cultivating, gathering, saving, handling, or preparing the crop for market.” — Code, §§ 4734-6.
The produce (corn, cotton seed, fodder, etc.) which, by the assumption on the part of Wright of the debt mentioned, Mooney was enabled to get released from Langley’s landlord’s lien and to remove and consume in the making of the crop on Wright’s premises, were such in kind and character as clearly to fall within the class of articles which, within the meaning of the statute quoted, would constitute “advances for the well-being and sustenance of the tenant and his family,” etc. If Wright had bought them outright and furnished them directly to Mooney, or with Mooney’s consent had procured another to do so by becoming, at or before the time that that other did so, legally responsible for them, undoubtedly Wright would have had the landlord’s lien here contended for. — Code, § 4734; Clanton v. Eaton, 92 Ala. 612, 8 South. 823; Ragsdale v. Kinney, 119 Ala. 461, 24 South. 443.
We can see no difference, and hold that there is no' difference, in principle between such a case as the latter and the case here, where Wright by assuming with Mooney’s consent the latter’s debt to Langley, who as an incident of such debt had a landlord’s lien upon the property, induced Langley to release his lien and there
It is needless to consider whether, on account of the statute of frauds (Code, § 4289, subd. 3), it was necessary for Wright’s said promise to Langley to be in writing (as bearing on which see Westmoreland v. Porter, 75 Ala. 452; Thornton v. Williams, 71 Ala. 555), or whether, if it was so necessary, the note written by Wright to Langley was or not a sufficient compliance with the requirement of the statute in this particular, since Wright’s liability under that promise and contract was never repudiated by him, or by the plaintiffs, or attempted to be, but such contract was, after his death, fully executed and performed by the plaintiffs, his sons and successors in interest, who paid the sum for which their father had, with Mooney’s consent, so become responsible. Contracts to which the statute of frauds is applicable are not, as a result of such statute, absolutely void, but are merely voidable. — Phillips-Neely Mer. Co. v. Banks, 8 Ala. App. 552, 63 South. 31; Bain v. Wells, 107 Ala. 562, 19 South. 774; Cooper v. Hornsby, 71 Ala. 62; Comer v. Sheehan, 74 Ala. 452; Shakespeare v. Alba, 76 Ala. 351. And’when they become executed, the statute ceases to have any application to them. — Lagerfelt v. McKie, 100 Ala. 430, 14 South. 281; Gordon v. Tweedy, 71 Ala. 202; Slatter v. Meek, 35 Ala. 528.
Granting, without deciding, the correctness of both the premises and the conclusion, a sufficient answer is that Mooney and those claiming through him (as are the claimants) are estopped by the conduct of Mooney from denying as against Wright or his successors in interest (as are the plaintiffs) that Langley had a lien upon the property and a right to forbid Mooney to remove it. Mooney, as is a fair implication from the undisputed facts, induced Wright to believe that there was such a lien and that it was necessary that the debt claimed by Langley, which it secured, be paid off in order to entitle him, Mooney, to remove the property, and, as is also a fair implication from the undisputed evidence, a belief on the part of Wright in the existence of such lien and necessity is what induced him to assume the debt.
Being of opinion, as expressed, that the affirmative charge was properly given against the appellants, it becomes unnecessary to consider the other alleged errors assigned by them.- — Western Union Tel. Co. v. Whitson, 145 Ala. 426, 41 South. 405; Griffin v. Bass Foundry Co., 135 Ala. 490, 33 South. 177; Bowlnig v. M. & M. Ry. Co., 128 Ala. 556, 29 South. 584.
The judgment appealed from is affirmed.
Affirmed.