57 Mo. App. 235 | Mo. Ct. App. | 1894
Lead Opinion
— This is an attachment suit by a landlord against his tenant, brought under the statute concerning landlord and tenant, for the purpose of enforcing the landlord’s lien for rent. The action was instituted within the eight months limited for the
Interpleader filed his interplea, claiming the property, a large lot of hay, as his own, under a purchase from the defendant, the tenant. The interpleader prevailed in the trial court, and plaintiff has appealed.
The first question to dispose of is, whether inter-pleader was the owner of the property at'the time of the levy of plaintiff’s attachment writ. Eor inter-pleader to recover, it must do so on the strength of its own case, without reference to the weakness of the plaintiff’s case. Boller v. Cohen, 42 Mo. App. 97. The facts, briefly stated, are that defendant rented lands of this plaintiff, as well as of other parties, and that.he likewise was engaged in the business of buying and selling hay. He was, at the time of the transaction with interpleader, the owner .of a lot of baled hay, a part of which was produced on the lands he rented of plaintiff, and a part of which was produced upon lands rented of other parties. Whether any part of it was what he purchased from outside parties does not appear. Interpleader entered into the following writing with defendant:
“Mr. Joseph Goodley, of Kenoma, Barton county, Missouri, agrees to sell and deliver to Harper-Fricke Grain Co., of Iantha, Barton county, Missouri, six hundred tons of number 1 prairie hay, now in barns at ■ Kenoma, Barton' county, Missouri. Said hay to be weighed and put in cars at Kenoma, Barton county, Missouri, on or before the following date: From the south barn by February 1, 1892, on or before. From the red barn (McKnight’s land), March 1, 1892, on or before. From the north barn or Major’s barn, by June 1, 3892. The said Harper-Fricke Grain Co. to pay for said hay at the rate of $5 per ton. And said Harper-Fricke Grain Co. have this third day of December, 1891, paid to said*240 Mr. Joseph Goodley the sum of two thousand dollars ($2,000) cash on said hay, the balance to be paid when delivered on cars at Kenoma, Barton county, Missouri, Mr. Joseph Goodley has $1,700 insurance on said hay. Said policy expires on April 1, 1892. Said policy to be transferred to the Harper-Ericke Grain Co. The said Harper-Ericke Grain Co. to furnish a man to help car hay. Said amount of hay stated above may be two or three cars more or less than the amount above stated.
“Jos. Goodley.
“Harper-Fricke Grain Co.
“Springfield, Greene County, Missouri, Dec. 3, 1891.”
Upon payment to defendant of the $2,000 mentioned in this writing he left the country. The barns in which the hay was, as mentioned in the writing, were in or near- the village of Kenoma, the nearest being about two hundred yards, and the furthest about eight hundred yards, from the place where it was to be loaded, on the cars. The evidence disclosed, without dispute, that the hay was inspected by the interpleader and defendant and that it was all supposed to be of the quality called for by the writing. It further appeared that the interpleader was taking all the hay in the three barns, it being supposed that there was not more than six hundred tons of it. It turned out, in point of fact that there was over five hundred tons, and that, with the exception of a quite trivial amount, it was of the quality supposed by the parties. Under these circumstances the trial court properly instructed the jury that there was a transfer of title to the hay from defendant to interpleader.
The contract in regard to the sale being reduced to writing took the transaction out of the statute of frauds, and thus left it only necessary that there should be a valid transfer of the title at common law. There
II. It became necessary to determine the foregoing question in order that another branch of the case may be properly decided. Plaintiff is a creditor of defendant, and as to plaintiff, more is requisite to a valid sale than as to interpleader. As to plaintiff, there must have been an open, actual and continuous change of possession before the levy of his writ of attachment. Having already determined that interpleader was the owner of the property, he necessarily had the right, if he so elected, to take possession by paying the price as it was ascertained, ,if .any. ye;b ^remained to be paid, •above the cash payment. The circumstance that the hay was to be put onto the cars by defendant was for interpleader’s benefit, and did not prevent him from
From the foregoing it is apparent that interpleader was the owner of the property and had title thereto, not only against defendant, but against this plaintiff as a creditor.
III. The remaining question is, has the inter-pleader the title thereto as against plaintiff as a landlord, or, in other words, has he the title to the property free from the landlord’s lien in so far as the present proceeding is concerned. In discussing this matter we will concede (merely as a concession) that the testimony shows enough knowledge on part of interpleader, under our decision in Dawson v. Coffey, 48 Mo. App. 109, to have put him on inquiry and thereby have charged him with knowledge that a part of the hay purchased was the product of plaintiff’s farm of which defendant was the tenant. The question then, will depend upon whether the suit which plaintiff has instituted is a suit
The statute then, in the respect now considered, is not different from what it was as found in Wagner’s; statutes, or the revision of 1865. The interpretation of the latter statute was that an attachment was not a remedy for the enforcement of the lien. In Price v. Roetzell, 56 Mo. 500, it was held, Napton, J., speaking for the court, that it was obvious “an attachment, such as the section authorizes, is not to enforce a lien against the crops raised during the year, but to secure the rent from property on the place on which there is-no lien.” And in Hubbard v. Moss, 65 Mo. 647, the supreme court says: “We do not think that the attachment was a remedy provided for enforcing the lien, for the lien may be in full'force and the landlord have-no right to an attachment at all.” That case then proceeds to hold, in effect, that the crops are attachable property at the suit of the landlord, notwithstanding he is not enforcing his lien as such.
But it may be suggested -that the section of the-statute which provides for the landlord’s lien, as such, likewise provides for its enforcement by attachment. That section has been amended since the decisions last referred to and, as we have seen that attachment was-not the remedy before the amendment, it is necessary to ascertain if that amendment has made any change
There are expressions, made in the course of the opinions in Chamberlain v. Heard, 22 Mo. App. 416,
The result of our conclusion on this subject is that the lien and the attachment are things apart; that the landlord has two remedies by which he may proceed to the collection of his rent: One is by enforcement of his lien; see Price v. Roetzell, supra; and the other is by attachment as provided in the aforesaid section 6384, Revised Statutes, 1889. If he elects to proceed by attachment, he does so as an ordinary attaching creditor with no additional rights, in such action at least, by reason of the fact that his claim is for rent.
From this conclusion it follows that whatever was hypothetically put' to the jury in the instructions of the court as to plaintiff’s right to a lien were more than he was entitled to and that he has no ground of complaint at the refusal of others offered.
No other objections are offered which we., deem necessary to discuss and we therefore affirm the judgment.
Rehearing
ON KEHEARING.
— We granted a rehearing in this case principally for the reason that we found that that portion of the foregoing opinion which ruled that attachment was not the proper remedy for the enforcement of a landlord’s lien was in conflict with a case in the supreme court, Garroutte v. White, 92 Mo. 240.
The whole case has, however, been again well argued and we have again given it our consideration. The sale and the circumstances of the sale we find on examination to be as originally stated. The contract
On the question as to whether interpleader took actual and visible possession of the hay before the levy of. the attachment, there can be nothing further said than that the jury passed upon it under proper instructions, and that there was ample evidence to sustain their finding.
We will now proceed to dispose of the case in recognition of the decision of the supreme court above referred to, that attachment is the proper remedy. There was evidence tending to show that a small portion of the hay was grown upon plaintiff’s lands by the defendant as his tenant and the court gave instructions to the jury whereby it was intended to assert that if any of the hay was grown upon plaintiff’s land it was subject to the lien and should be deducted from the whole amount sold to interpleader. This instruction is criticised by plaintiff. It is furthermore asserted that the
The amendment to the statutes, section 6384, reads as follows : “* * * Provided, if any person shall buy any crop grown on demised premises upon which any rent is unpaid, and such purchaser has knowledge of the fact that such crop was grown on demised premises, he shall be liable in an action for the value thereof, to any party entitled thereto, or may be subject to garnishment at law in any suit against the tenant for the recovery of the rent.” This amendment has' reference to the
The landlord’s lien does not depend upon contract, it is a charge fixed by statute and it ought not to be assumed that it was intended to permit such charge to place an embargo upon the transfer of so large a portion of the personal property of the country. The law favors an innocent purchaser, and without some affirmative legislation showing an intention to take from him that protection with which he is favored in other matters of a commercial nature, both by our statutes and the common law, the lien of the landlord should not be made an exception. There is no necessity under existing law, for allowing an exception. The landlord is amply protected. He has had ample remedies provided for him. If the tenant is about 'to remove the crop from the premises, or has removed it, the landlord may attach it. He is doubtless given these rights partly on the idea that by a removal and sale to bona
We have refrained from commenting upon a number of cases where the decision for or against the proposition we here maintain has been influenced by ■ provisions of statutes not found here. After a careful