95 Ala. 295 | Ala. | 1891
The defendants, Cantey & Randolph, merchants doing business in Anniston, were indebted to plaintiff for rent of the storehouse in which they conducted their mercantile business. On the 4th of April, 1891, as appears from the answer of the garnishee, the defendants made a general assignment to A. P. Agee, “for the benefit of their creditors, of all their notes, accounts, office furniture, and all effects then unsold, which goods, furniture and effects, were at the time of the assignment in the building in which they were doing business, and for which defendants owed rent.” On the 17th of April, 1891, the plaintiff (McKleroy) sued out an attachment against Cantey & Randolph, to enforce his landlord’s lien, and had process of garnishment served upon the assignee, Agee. The attachment suit was prosecuted to judgment against the defendants in attachment, and the answer of the garnishee not being contested, the court held that plaintiff was not entitled to a judgment against him, and he was discharged. The appeal is prosecuted from the judgment of the court discharging the garnishee.
In addition to the facts stated above, the answer of the garnishee proceeds as follows: “The said garnishee came into the possession, by and under said assignment, of a large number of book accounts against various and sundry persons, living at different places, about $6,700.00 to $7,000.00, from which he has collected the sum of $5,000.00, which he
Section 3069 of tbe Code declares, “Tbe landlord of any storehouse shall have a lien on tbe goods, furniture and effects belonging to tbe tenant, for bis rent, wbicb shall be superior to all other liens, except those for taxes.” Section 3070, subd. 2, provides tbat tbe landlord may enforce bis lien by attachment, when tbe tenant has made an assignment for the benefit of bis creditors.
Tbe landlord’s lien is declared by tbe statute. It does not depend for its creation upon distress by the landlord, or tbe suing out of tbe attachment. As was held in Ex parte Barnes, 84 Ala. 540, tbe lien is understood to enter into, and is a part of every contract between tbe landlord and tenant for tbe lease of a storehouse, and tbe remedy by attachment is merely a means provided by tbe statute for tbe enforcement of tbe lien. Whoever buys from tbe tenant goods, furniture or effects, upon wbicb tbe law fixes tbe lien, with a knowledge of tbe existence of tbe relation of landlord and tenant, is charged with notice of this lien for whatever may be owing from tbe tenant to bis landlord. No assurance of tbe tenant himself will suffice to invest bis vendee with tbe character of an innocent purchaser, or enable him to bold tbe property discharged of tbe lien. Goods sold by a merchant in tbe usual course of trade are discharged of tbe lien, for such necessarily, from tbe character of tbe business, must be within tbe understanding of tbe parties; but goods conveyed by a merchant in payment of an antecedent debt, and purchased solely for tbe purpose of collecting a debt, is not within tbe intendment of the parties to tbe rental contract. As was said in Weil v. McWhorter, 94 Ala. 540, “if a dealer casually owes a customer, and tbe customer has need of bis debtor’s wares, tbe satisfaction of such indebtedness by supplying tbe necessity would be in due course of trade.” In such case, tbe collection of tbe debt is not tbe purpose intended by the transaction.
In tbe case of Fox v. Jones et al., reported in 8 So. Rep. 449, a case decided by tbe Supreme Court of Florida, the
Tbe case at bar, in some' respects, is unlike tbe case of Hodges Bros. v. Coleman & Carroll. In tbe latter case, Hodges Bros, were creditors of Jackson & Brother. Jackson & Brother sold their goods to Bruner & Loeb, and Bruner & Loeb sold tbe goods to Coleman & Carroll. Hodges & Bros, sued out an attachment against Jackson & Brother, and garnished Coleman & Carroll for an alleged balance due on their purchase. Bruner & Loeb were not parties to tbe suit. Hodges & Brothers were simple creditors without a lien upon the goods. To maintain their action, it was necessary to set aside tbe sale by Jackson & Brother as fraudulent and void, and yet, to sustain tbe garnishment process, which sought to reach a balance due on tbe purchase, it was necessary to maintain tbe validity of tbe sale. Tbe balance due from Coleman & Carroll could not be reached as a debt due, except upon tbe ratification of tbe sale of tbe goods to Coleman & Carroll. Tbe court in tbat case further beld, tbat in no event could tbe plaintiff proceed to judgment against tbe garnishees, without notice to Bruner & Loeb, the intermediate purchasers. Tbe principles of law applicable to tbe facts of tbat case in this respect'do not apply to tbe facts of tbe present case.
In tbe case of Jones v. Crews, 64 Ala. 370, relied on by
We have previously declared that goods sold in tbe “usual course of trade” were discharged of tbe lien, and it is evident that tbe lien is not transferred to tbe choses in action ox-debts which may be owing for goods legitimately sold by tbe tenant in tbe “usual course of trade” on a credit, before tbe making of tbe assignment. Money in tbe bands of tbe assignee cellected by him upon such notes and accounts is not subject to tbe prior lien of tbe landlord. Such money in bis bands will be paid out in accordance with tbe terms of tbe assignment.
For tbe errors pointed out, tbe case must be reversed, and tbe cause remanded.