Scaife & Co. v. Stovall, 67 Ala. 237

Scaife & Co. v. Stovall

67 Ala. 237 | Ala. | 1880

BRICKELL, C. J.

— The single question this case involves, is, whether a landlord having a lien for rent and advances, or for either, can enforce it by attachment on the crop in the possession of a purchaser from the tenant, after its removal from the rented premises, for a valuable consideration, having no notice of the lien. To this precise question, we intend confining our opinion, which, we may remark, could not have arisen under the old statute creating and defining the lien of a landlord, upon crops grown on rented premises, the legal remedy for the enforcement of which, was an attachment to be “ levied on the crop in the possession of the tenant, or any one holding it in his right, or in the possession of a purchaser from him, with notice of the lien of the landlord,” and which was incorporated in the Revised Code of 1876, forming §§ 2961-63. The obvious effect and operation of that statute was, the preservation of the lien on the crop, though-the relation of landlord and tenant was dissolved, and the crop removed from the premises rented, until it passed into the possession of a purchaser without notice, and such was the construction it received.— Governor v. Davis, 20 Ala. 366; Lomax v. LeGrand, 60 Ala. 537. The lien was not so frail, and was clearly distinguishable from *241that the landlord had at common law, upon goods and chattels on the demised premises, which could be enforced only so long as they remained upon the premises. They could be distrained during the term, and the right was lost by their removal before distress.

The removal of the crop, or any portion thereof, from the rented premises, without the consent of the landlord, was one of the facts which authorized a resort to attachment for the enforcement of the lien. So long as the crops remained on the premises, the tenant did not have a possession of them severed and distinct from his possession of the premises, and of itself, as is the possession of all personal property, capable of a visible, tangible possession, prima facie evidence of ownership. When removed from the premises, he had a separate, distinct possession, affording prima facie evidence of ownership, and of its incidents, the right to sell, or otherwise dispose of them. Then, if the landlord sought to follow the crop into the hands of a purchaser, and fasten the lien upon them by attachment, notice to the purchaser must have been traced. — Lomax v. LeGrand, supra.

This statute has been, however, repealed, and superseded by subsequent legislation which forms the 9th chapter of the 3d Part, and Title 2d, of the Code of 1876, §§ 3467-78. A lien is given the landlord not only for rent for the current year, but for advances made by him to the tenant, or made by another at his request, for which he assumes legal responsibility, whether in money, or other thing of value. The lien can be enforced by attachment by the landlord, or his assignee, whenever either the claim for rent, or that for advances is due, and the tenant, after demand, fails or refuses to make payment. Or, whether the claim is due or not, if there is reason to believe that the tenant is about removing the crop from the premises, or otherwise disposing of it. Or, when he has, without the consent of the landlord, or of his asignee, removed from the premises, ór otherwise disposed of any part of the crop without payment of the claims for rent and advances. Or, when he has disposed of, or there is good cause to believe he is about disposing of, the articles advanced or obtained with the money advanced, &c., an attachment for the enforcement of the lien may be issued. The attachment “ may be levied upon the crop or the proceeds thereof, and upon the articles advanced, or property purchased with money advanced or obtained by barter in exchange for articles advanced.” The present, as the former statute, creates by its words, a lien, a charge upon the crops and other property therein designated. There is no change of ownership — that resides in the tenant, as it would have *242resided in the absence of the statute. Nor is there any other restraint upon the incidents of ownership — upon the tenants unqualified right of enjoyment, than such as is necessary to. preserve the lien, as the primary charge for the satisfaction of the favored debts. It is an incident to the relation of landlord and tenant attached by the statute, not having any element of a jus in re, or a jus ad rern, but a simple legal right to charge the particular property with the payment of the particular debts, in preference to, and in priority of all other debts. The lien will of course prevail against the tenant himself so long as he has possession, and so it will prevail against volunteers, and purchasers from him having notice, though upon a valuable consideration, for neither the -volunteer, nor the purchaser with notice, can have any equity to protection against it, and must be presumed-, unless fraud is imputed, to intend taking in subordination to it. Of this lien it may be said, that it is secret, for of it, notice is not required to be given in any form, and if the contracts between landlord and tenant, rest in words only, not reduced to writing, as is probably most often the case, the notice cannot be given. Such liens are not accord-r ing to any principle of law known to us, alkwed to prevail against purchasers from the true owner, for a valuable consideration, without notice. They differ materially from the liens known to the common law, as that of a factor, or of an innkeeper, or a common carrier, or an artificer, continuing so long only as possession remained, and ceasing whenever there was a parting with possession. The possession gave notice of the lien, or at least it was enough to excite inquiry which would lead to actual notice, and of consequence, there would never be a bona fide purchaser claiming in opposition to it. The ownership, and the possession, residing in the tenant, when the crop is removed from the premises, a separate, distinct possession of the crop only, must furnish a security to all who deal with him in good faith and for value, or there would be great embarrassments and but little safety in dealing in the agricultural products of the country. We speak only of purchases made after the removal of the crop from the premises, for that is the case before us, and we do not intend our opinion to extend beyond it. Against every analagous right or lien springing up from the contract or relation of parties known to, recognized and enforced by law, not the mere creature of a statute, a bona fide purchaser is protected. It may well be said, the law delights in his protection, and regards it as a wise policy, founded in the demands of justice, promotive of commerce, to save him from mere charges or incumbrances of the ownership, of which *243lie cannot by any prescribed measure of diligence acquire notice. (Statutes are always read and construed in the light of the common law, and are not regarded as infringing upon its rules and principles, save so far as may be expressed, or fairly implied to give them full operation. | When a charge merely upon property is created by statute — a mere primary right for the satisfaction of a debt, it cannot be supposed, unless the intention is clearly expressed, or it is matter of just implication, that it is intended the charge shall have a superiority, the common law does not attach to similar charges, and especially a superiority that law carefully withholds. Though it was matter of necessary implication from the words of the former statute, that the crop could be levied on in the hands of a purchaser from the tenant with notice of the lien, that it could not be taken from a purchaser without notice, in that respect, the statute was merely in recognition of the principle of the common law, which would have prevailed if it had been silent. All that can be said is, that the present statute is silent as to the persons in whose possession the crop may be levied on by attachment, leaving that question, if a controversy arises as to it, to be determined by the common law, and that law intervened for the protection of the bona fide purchaser, who has equal equity with the landlord, and the legal title attached to it. The reasonable implications from the statute support this view. For the removal, or the intended removal of the crop, furnishes a cause for the attachment -of it, before the claims, which are liens, fall due. The reason must be that the removal endangers the lien, and one of the perils operating its defeat, was, it is fair to presume, that the rights of a bona fide purchaser might intervene in consequence of the removal. The attachment may also be levied upon the proceeds of the crop, which indicates that a conversion of it by sale or otherwise,- might be made, and a purpose to extend the lien to whatever was realized therefrom by the tenant. There is no express abrogation of the principle of the common law protecting a bona fide, purchaser from mere liens of' which he has no notice, and no provision which would authorize a construction that there was an intention to abrogate it. Protection to such a purchaser, renders the statute harmonious in its operation with the principle of the common law in reference to all analogous liens or charges, and saves the lien from clogging and' embarrassing fair commerce in agricultural products.

We cannot attach any force to the argument that because a tenant, or other person, who, with an intent to hinder, delay, or defraud, removes or sells property upon which an*244other has a valid claim, may be punished as if he had stolen it (Code of 1876, § 4353), therefore, no good title can be derived from him. The statute does not, as is argued, convert the sale or removal into larceny, and an indictment for larceny founded on it could not be sustained. — La Vaul v. Stater 40 Ala. 44. It is in recognition of the ownership, and visits the punishment of larceny upon the fraudulent exercise of the rights and incidents of ownership.

The rulings of the Circuit Court are not in conformity to these views, and its judgment must be reversed, and the cause remanded.