Rice v. Harris

76 Miss. 422 | Miss. | 1898

Terral, J.,

delivered the opinion of the court.

On the tenth day of September, 1897, Rice rented to Mrs. J. G. Harris a storehouse for one year for $480, payable in sums of $50 monthly. On the twenty-first of January, 1898, Mrs. Harris, under ch. 8, annotated code, made an assignment to J. W. Slack of all her property for payment of her creditors. Slack gave bond as such assignee, which was duly approved, filed his petition, and duly qualified as assignee, and inventoried the property assigned him by Mrs. Harris, which inventory included the unexpired lease of Rice to Mrs. Harris. On the fourteenth of February, 1898, Slack, under the order of the chancery court, sold all the property assigned to him for $2,875. Said property was sold to Hirsh, who removed the stock of goods assigned by Mrs. Harris to Slack, and bought by him, from the storehouse rented to Mrs. Harris, and sublet said storehouse to Stewart. Rice owns seven of said rent notes, amounting to $280, which are unpaid. On March, 30, 1898, Rice filed his cross petition in the chancery court against Mrs, J. Gr. Harris and J. W. Slack, stating the above recited facts, and praying that Slack may be decreed to pay him, out of the money in his hands as assignee, said sum of $280. Assignee Slack demurred to the cross petition, which was sustained, and Rice appealed.

Chapter 52, Laws 1894, provides that no goods, being on. the premises rented for one year, shall be taken under execution or other process whatever, unless the party so taking the same shall, before the removal of the goods from the premises, pay to the lessor all the unpaid rent, not exceeding one year’s rent, whether the day of payment shall have come or not. This, right gives, undoubtedly, to the lessor the right to have his rent paid from or out of the goods on the premises, when taken under execution or other process.

By reason of the assignment of the goods by Harris to Slack, under ch. 8, annotated code, thereby placing the goods on the demised premises in the hands of the chancery court, so that to. distrain it by Rice would be a contempt of said court, has the right of the lessor been destroyed % We think not. The right which the lessor had, unless the assignment had been made, to seize the goods for the payment of his rent, is not available at law, by reason of the assignment but on that 'account it is a good foundation for a claim in the chancery court, where the assigned goods are administered, and for a decree there for such claim. If we understand counsel for appellee, they suppose that Rice might have a good claim for the intervention of the chancery court, if he had filed his cross petition within, thirty days from the time the goods were removed from the rented premises. We.do not perceive that the removal of the goods from the demised premises affects in any way the rights of Rice. Hirsh was a liona fide purchaser of the goods, and, in his hands, they were not subject to be attached by Rice, whether they were on the premises, or within thirty days from a removal therefrom. Hirsh was a purchaser under the decree of the court, and by this proceeding in court, and under the decree of the court, Rice was precluded from going against the property sold, and for that reason gives him a right to demand of the assignee of the goods the payment of his rent from the money produced by a sale of the property, which.the proceeding in the chancery court had precluded him from attaching to pay them.

.Reversed and remanded.