O'Keefe v. McLemore, 87 So. 855

O'Keefe v. McLemore

87 So. 855 | Miss. | 1921

Ethridge, J.,

delivered the opinion of the court.

In November, 1919, G. B. McLemore, the appellee, sued out an attachment as landlord for rent in arrears and levied on a lot of cotton in Washington county, Miss. ■ J. B. O’Keefe, one of the appellants, replevined the cotton, and at the December, 1919, term of the circuit court filed his declaration in replevin against McLemore for the said cotton, to which declaration McLemore filed an avowry justifying the seizure of the cotton, as landlord by virtue of a certain lease beginning the 3d day of March, 1919, and ending the 31st day of December, 1919. In this attachment, upon which this suit is based, it is stated to have been for a term commencing on the 1st day of Nevem-ber, 1919, and ending on the 1st day of January, 1920. To the said avowry the plaintiff O’Keefe filed a replication denying any indebtedness to McLemore and gave notice of the filing of special matter under the general issue; first, that as part of the said lease the defendant agreed to erect on the leased premises, as soon after the date of the said lease as possible, a suitable barn for housing the tenant’s stock and for storing his feedstuff, which agreement the defendant had breached, and in consequence thereof the plaintiff had sustained specific damages; second, that some of the cotton specifically designated, levied on, was not grown on the leased premises, and had never been thereon, and was not subject to attachment; third, ■ that after making the said lease McLemore conveyed by deed the leased premises to one G. R. Smith, before any rent became due, without reserving or excepting the said rent therefrom, in consequence of which said rent is alleged to have passed to said C. R. Smith, and said Mc-Lemore ceased to be the landlord and was no longer entitled to an attachment for rent. After this notice was filed, the defendant, McLemore, by leave of the court *404amended bis affidávit, tbe writ of attachment, the avowry, etc., by inserting after the name J. B. McLemore where-ever the same occurred the words “assignee and holder for value at the making of the levy,” so as to show the proceedings were prosecuted as assignee of the rent note and not as landlord.

On the trial it appeared that McLemore, by deed dated March 4, 1919, conveyed the premises involved in the suit to one C. R. Smith by deed absolute in form without reservation of the rent, which deed was recorded April 10, 1919. At the time this deed was executed McLemore had placed the note for the rent involved as collateral for a loan with one Grafton, and there was a verbal understanding between Smith and McLemore that the rent note did not pass with the conveyance, and it was also in testimony that this deed from McLemore to Smith was made for the purpose of procuring a loan for the benefit of McLemore. Subsequent to the execution of the deed McLemore paid the debt to Grafton, and the note was redelivered to Mc-Lemore without indorsement or writing from Grafton, and subsequent to this McLemore entered into a contract with Moore and Nichols to sell them the premises in question, in which contract the rent Avas reserved to McLemore, and credit for the amount of the rent Avas deducted from the purchase price of the premises, and on August 16, 1919, O. R. Smith conveyed the premises to Moore and Nichols; the rent notes sued on containing, among other things, a provision for the payment of an attorney’s fee if not paid at maturity. The rent contract and notes were signed by one Stewart and were assumed afterwards by O’Keefe under a contract taking over an assignment of lease and O’Keefe assuming to pay the note.

When the defendant offered his proof and closed his case, the plaintiff, who is the appellant here, moved to strike out the. evidence, and also for a peremptory instruction on the theory that the defendant was not the owner of the rent note and Avas not the landlord, which motion Avas overruled. Appellant requested instruction *405that an attorney’s fee could not be allowed in this proceeding, which was refused, and the defendant was given an instruction informing the jury that he was entitled to recover the amount of the note, interest, and attorney’s fee, amounting to a given sum, less any amount that the plaintiff might be damaged by failure to erect the dwelling house and barn upon the leased premises, in accordance with the stipulations of the rent contract. The plaintiff objected to the introduction of the evidence as to the understanding between McLemore and Smith as to the rent note, because' there was no reservation in the deed. There was a judgment for the defendant, McLemore, for the amount of the note, interest, and attorney’s fee, without deduction for damages from the failure to erect the residence and barn referred to in the contract, and a judgment was rendered for this amount, from which judgment this appeal is prosecuted.

We will first deal with the proposition of the attorney’s fee allowed the defendant on this note. The statute gives the landlord a lien to secure the payment of the rent and for money advanced to the tenant, and the fair market value of all advances made by him to his tenant for supplies for the tenant and others with whom he may contract and for his business carried on on the leased premises, and for live stock furnished during the year for which they were furnished, and for farming tools, implements and vehicles furnished by him to his tenant. By statute and the decisions of this court this lien is superior to all others, and is good even against a bona-fide purchaser for value, without notice. The proceeding here was begun by suing out a distress, which' is a statutory method of collecting rent and supplies, and we think the landlord’s lien does not embrace money expended for an attorney’s fee in enforcing his rights. He has a contract with the tenant which is good as a personal demand against the tenant, but it is not secured by a lien against the agricultural products and ought not to be allowed in a proceeding of this kind. We will not extend the statute so as to cover *406demands not embraced in the terms of. the statute, and the instruction for the appellant on this feature of the case should have been given, and the instruction given the defendant authorizing the allowance of an attorney’s fee in this proceeding ought not to have been given, and constitutes reversible error.

In the next place it is'insisted that there is no right to the distress because McLemore was neither the landlord nor the assignee of the landlord; that he cannot be both the assignor and the assignee of the same instrument. The deed from Smith to Moore and Nichols, while referred to in the briefs, is not in the record, nor are its terms set forth in the agreement as to facts. Smith is not a party to this suit, and no right which he may have could be adjudged in this suit. It is. recited in the agreed statement of facts that the deed from Smith conveyed the land to Moore and Nichols, and that the deed is recorded in a named book and page of the land records of Washington County, Miss., which deed was read in evidence to the jury by the defendant, the appellee. But it is not stated in the agreement, nor does it appear in the record from any copy of the deed, that the rent notes, or rent, was reserved to McLemore in that deed. We think it was error to receive in evidencedn a law court the understanding between McLemore and Smith, and that it was not admissible to show the verbal understanding reserving the rent. The 'rent note, it is true, at that time was held by Grafton as collateral security for a loan to McLemore, and his title, the assignment for this purpose being known to Smith, would protect him from Smith’s claim to the rent should Smith assert any such claim; but when McLemore paid Grafton the debt which was secured by the assigned note Grafton’s right? to the note ceased to exist, and Smith’s right under the deed became effective, and the fact that McLemore had the note in his manual possession would not give him title to the rent nor a right of action for its enforcement. It may be that the stipulation, if there was a stipulation, in the Smith deed to Moore and Nichols *407may liaye bad the effect to vest in McLemore the right of the rent note as an assignee, and,.if so, of course the right to enforce the note by remedies created by statute would exist. This may be determined on a new trial. We do not enter upon a consideration noiv of any equitable features or rights that may exist in McLemore. It may be that he has such rights as could only be invoked in the chancery court, and it may be that the case ought to be transferred to the chancery court, but in the absence of Smith being a party to the record we do not feel authorized to remand it to the chancery court instead of the circuit court.

For the errors indicated, the judgment will be reversed and the cause remanded.

Reversed and remanded.