75 Ga. 140 | Ga. | 1886
If this be a proceeding to enforce the special lien of the landlord upon the crop of the tenant raised on the land rented, then the court was right in holding that a previous demand on the defendant for payment of the sum alleged to be due, and a refusal on his part to pay was essential to the assertion and enforcement of such lien and in dismissing the warrant because of a failure to aver the demand and refusal to pay; but if, on the contrary, it was an ordinary disti’ess warrant to collect rent out of the property of the defendant, then no averment of a demand for payment and a refusal thereof was necessary, and there was error in dismissing the proceeding for want of such an averment. The question to be resolved, then, is whether this was a proceeding to enforce a special lien upon the crop grown on the rented premises, or one to acquire a lien by the levy of the distress warrant upon any property belonging to defendant which attached only from the date of the levy. It is conceded by the plaintiff in error that this is not valid as a proceeding to enforce a special lien of the landlord, and it is insisted that such was not its object, but that it is good as a distress warrant to acquire’a lien upon such of the property of the defendant as might be levied on, and which took effect only from the date of
An inspection of the record will determine the character of this proceding. The affidavit for the warrant, after alleging indebtedness for the rent of the premises, and the mode in which it was to be paid—viz., in cotton—and that cotton was made on the land in tho year for which the rent accrued, and on which the defendant lived in that year, states that the sum agreed to be paid “ is now due.” The warrant commands the officer executing it “ to levy on and sell, as provided by law, a sufficiency of the property ” of the defendant to make the sum claimed, together with costs, and to have the same before the superior court, etc. The levy is upon seed cotton gathered and corn and cotton in the field.cultivated that year by the defendant, and all seized as his property. There is nothing in the testimony or in the facts admitted inconsistent with what appears-from the foregoing recital's.
Whatever may have been privately intended, it is perfectly clear that this warrant, and the affidavit on which it was founded, makes no case for the enforcement of the special lien of the landlord upon the crop raised on the land rented by the tenant; besides, failing to aver a demand and refusal of payment, as provided in section 1991, sub-sec 1 of-the Code, it does not state that crops on the rented land had matured, or make the other equivalent statement that it had been otherwise agreed on as to the time from which such special lien should date, as required by the preceding section (1977) of the Code. It does not follow from this latter secton that the party having, as landlord, a right to rent, which may be either a special or a general lien, is obliged to adopt the remedy for the enforcement of the former in preference to that given to enforce the latter, or that, where he has two demands for rent, one a special and the other a general Llien, he may not include and enforce both in one distress warrant; he is not compelled, although he has the option, to do so, as
Judgment reversed.