74 So. 659 | Miss. | 1917
delivered the opinion of the court.
Appellee instituted an action of replevin against appellants for a certain piano of the value of seven hundred and fifty dollars. The case went off on an agreed statement of facts, and the trial judge instructed the jury to find for plaintiff, appellee here, and this was done. Prom a judgment awarding the piano to plaintiff, the defendants have prosecuted this appeal.
The agreed statement of facts is as follows, viz.:
“It is agreed by and between L. Grünewald Company, Limited, by its attorneys of record, Whittington & Osborn, and the defendant T. S. Shuler, that this ea&e may be tried by the court, a jury being waived, and judgment rendered in this cause on the following agreed statement of facts:
“That the electric piano involved in this replevin suit was delivered by the plaintiff to one A. C. Boss, of Greenwood, Miss., on or about the 15th day of April, 1915, under the terms of a conditional contract of sale dated April 15, 1915, the original of which is hereto*772 attached as ‘Exhibit A’ to this agreement and made a part hereof; that the said A. C. Eoss did not pay the plaintiff any part of the consideration mentioned in said contract of sale, and is now indebted to plaintiff for the full amount of the purchase price of said piano; and that the plaintiff herein is the owner of said piano and entitled to the possession of same unless the defendant herein has acquired title to the same to the exclusion of plaintiff in the following manner:
“The said A. C. Eoss was operating a moving picture show in the city of Greenwood, Miss., in a building rented by the said Eoss from T. E. Henderson, and on or about the-■ — ■ day of June, 1915, the said Eoss being in arrears with the rent due said Henderson for said building, an attachment for rent was sued out by the said T. E. Henderson against said Eoss for said, past-due rent in accordance with and under the provisions of chapter 76 of the Code of 1906, and, among other things, said attachment for rent was levied on the said electric pia.no which was at the time of said levy located in said building and in the possession of said Eoss; that subsequently said piano was sold by the proper officer under said attachment for rent, and at said sale, which was regular in every respect, the defendant herein became the purchaser of said electric piano for the sum of forty dollars which sum was not in excess of the amount due by said Eoss to said Henderson for rent under said attachment, and said piano was delivered to the defendant by the officer making said sale and has been in the possession of the defendant since that time to the bringing of this suit. The value of said piano is that alleged in the affidavit in replevin.
“It is further agreed that said attachment was properly brought by the said Henderson against the said Eoss for rent in arrears in a definite sum, and that all of the proceedings in connection with said levy and sale were regular and according to law.
*773 “It is further agreed that neither said T. E. Henderson, nor said T. S. Shuler, nor the officer levying said attachment for rent and making said sale thereunder, knew, at any time, until after said sale, that the plaintiff herein claimed title or ownership to said piano. And it is also agreed that the said L. Grünewald Company, plaintiff, which is located at New Orleans, La., had no notice whatever of said attachment and sale thereunder until some time after said sale and after said piano had been delivered by the officer making said sale to the defendant, and that the plaintiff herein did not replevin the piano from the officer levying the attachment and making said sale, nor take any other steps to recover the said piano save and only in this replevin suit.'
“The only question to be decided by the court is whether the plaintiff herein, L. Grünewald Company, Limited, or the defendant T. S. Shuler, has the better title to said property, and which is entitled' to the possession of same.”
The determination of this appeal turns upon a proper construction of sections 2867 and 2868, Code 1906, which sections are a rescript of sections 2529 and 2530, Code of 1892. Prior to the Code of 1892, persons claiming title to property distrained for rent were confined to the remedy provided by the statute. In other words, the only remedy was prescribed by the statute, and, unless the claimant propounded his claim in the manner prescribed by the statute, he would lose his property— the statutory scheme was exclusive. Kendrick v. Watkins, 54 Miss. 495; Gibson v. Lock, 58 Miss. 298; Paine v. Hall, 64 Miss. 175, 1 So. 56.
Appellants’ counsel contend that the statutory limitation only aniended the common law, and the remedy prescribed by the statute was necessarily exclusive, because under the common law the owner of property distrained for rent had no remedy, and, leaving. out the limitations of the statute, the statutory scheme was
We here quote sections 2867 and 2868, Code 1906, viz.:
“Property of Strangers Not Liable. — Property, except agricultural products on which there is a lien for rent, found or being on any demised premises,- not belonging to the tenant or to some person bound or liable for the rent of such premises, shall not be liable to be distrained for rent; but if the tenant or other person liable for the rent have a limited interest in the property, the same may be distrained, and the interest therein of the tenant or person liable for the rent may be sold.
“2868. Replevin of Property by Strangers. — When any person other than the tenant shall claim to be the owner of any property distrained or seized for rent or supplies, or either, he may make affidavit that said property is his, and not the property of the tenant, and not held to the use of the tenant in any manner whatever, and is not liable to such distress or seizure; and if he desire immediate possession of said property, he shall give bond, with sufficient sureties, in the manner directed for the tenant, and such affidavit and bond shall be delivered to the officer who made the distress, who shall deliver the property to the claimant. Such claim may be interposed without giving bond, and the same proceedings shall be had thereon, except that the property claimed shall not be delivered to the claimant, but shall be disposed of as in the ease of replevy by the tenant. Upon such claim being made, the landlord*775 may release the property so claimed and forthwith dis-train or. seize other property in lien thereof.”
It will he observed that section 2867 exempts all property found on the premises, not belonging to the tenant, except agricultural products, from distress. In this case, the property levied on was not liable for rent; it did not belong to the tenant; he had no limited interest in the property. The agreed statement of facts shows that the owner did not know that the- piano had been distrained and sold to appellees, but, after learning the facts, the action in replevin was promptly begun.
So, the purchasers of the piano were aware that the landlord had no lien on the piano for rent, and there is no evidence that any inquiry was made as to ownership.
It is significant that the legislature, before 1892, in precise language, confined the owner of property to the remedy prescribed by the statute, but in the present statute the precise and definite limitation is omitted. It is the business of the courts to discover the legislative intent, and, having found it, to enforce it.
The statute as written prior to the Code of 1892 had been interpreted and enforced by the courts. The owner of property distrained, not belonging to the tenant, was limited to the remedy provided by the statute, for the manifest reason, if for no other, that the statute was so written. This precise definition of the owner’s rights was not written into the present statute, and we are of the opinion that the legislature intended that the owner had the option to pursue the statutory .remedy, or to claim the property in any other way known to the law.
We do not believe that the chapter on landlord and tenant was designed to give the landlord preference over other creditors, except upon agricultural products grown on the land. As to all other property not belonging to the tenant, the landlord’s rights must yield to the rights of the true owner in the same way and to the same extent as other creditors.
Affirmed.
