Smith's Adm'r v. Bryant's Adm'r

| Ala. | Dec 15, 1877

MANNING, J.

The lien of a landlord upon a crop grown on leased premises, for the payment of rent, is given by the statute on the subject, and not by the attachment which, under certain circumstances, the statute authorizes. The attachment is merely a mode of enforcing the lien by proceedings at law, not of creating it. Hence, we have lately held that a court of equity may be resorted to by the landlord, when this becomes necessary to make his lien available for the payment of the rent.—Westmoreland v. Foster, and Abraham v. Hall, in MSS.

The lien, thus having an existence independent óf the attachment, may of course, and should, be recognized by the parties to the lease, and effect given to it voluntarily. If the tenant, when the crop is gathered, should turn the portion of it necessary, over to the landlord to be converted into money to pay the rent, or, with the consent of the landlord, should himself sell it and pay the rent out of the proceeds* the transaction would be a proper one.

In the present case, the tenant having died after the crop was gathered, and the landlord having become administrator of his estate, the cotton in controversy, part of the crop, went into his hands; and he was the representative of the tenant as well as himself the landlord. Did he thereby lose his lien on the crop? Assuredly not. Must he, in order to enforce it, as he could not do so at law, go into a court of equity, have an administrator ad litem appointed under the statute, and thus create against the estate a heavy bill of costs ? This would be very improvident, and ought not to be encouraged. What then should be done ? It would be perfectly proper for him, upon a sale of the cotton, to retain the rent, for which he had a lien upon it, out of the proceeds, and credit himself in his accounts as administrator with so much paid on account of the estate. He stands in the places of both the landlord and tenant; and may retain for the same reason that a preferred creditor of an estate, of which he is administrator, may pay himself, in preference of other creditors whose claims are by law postponed to his.

The judge of probate erred, if he denied the administrator’s lien on the ground that it could exist only in virtue of an attachment. But if, as some of the evidence seems to indicate, the rent for the Jyear 1872 was paid by a purchaser of the crop made in that year, and only the rent for the year 1871 remained due, the landlord was not entitled to a lien for it upon the crop of 1872, or to pay himself out of the assets of an insolvent estate, from the proceeds of that crop. He would be entitled only to his pro rata share with other creditors.

The court erred in excluding the testimony of the widow of the tenant, to prove, at the instance of the landlord, the contract of renting between him and her husband, made in her presence. Section 3058 (2704) of the Code of 1876 does not, by the exception therein, exclude one who is merely a witness from testifying as such, concerning an agreement or conversation between the deceased and another person. It excludes only a party to the transaction or conversation testified about, or a representative in the litigation, of such party, from giving Ms own version of it in Ms own interest, after the death of the other party.

Judgment reversed, and cause remanded.