Westmoreland & Trousdale v. Foster
60 Ala. 448
Ala.
1877
Check Treatment
STONE, J.

Section 3467 of the Code of 1876, and sections following, are the same as sections 2961 et seq. of the Bevised Code, as amended by the act approved March 8th, 1871 (Pamph. Acts, 19), the act approved March, 1875 (Pamph. Acts, 254), and the act approved February 9,1877 [Pamph. Acts, 74). The rights of the present parties must be determined by the act of 1871, because the renting was for the year 1873, before the enactment of the statute of March 18, *4541875. That statute declares, that “ a landlord has a lien on the crop grown on rented lands, superior to all other liens, for rent on . . said lands.” It then proceeds to give process of attachment for the enforcement of such lien, in certain specified cases. The most important inquiry, in this case, is, whether the lien exists independent of the statutory remedy given for its enforcement. We think it does, for the following, among other reasons :

First: The statute does not say that the lien is dependent on the attachment, or right to sue it out.

Second: The remedy provided is by no means commensurate with the right conferred. The lien is on all the crop grown on the rented land, for the current year. The right to sue out attachment arises, only “when the tenant is about to remove the crop from the premises, without paying the rent,” or “ when he has removed it, or any portion thereof, without the consent of the landlord.” If the tenant never removed, or was not about to remove some portion of the crop from the premises, the anomaly would be presented of a clearly defined right conferred, with no remedy for its enforcement, if attachment be the only remedy the landlord can invoke. •

Third,: Analagous liens, mere creatures of the law, as incidents of some contract made, are enforceable by the common processes of the law, in addition to the statutory remedy provided. — See Revised Code, § 1858; Code of 1876, § 3286; Abraham v. Carter, 53 Ala. 8; 2 Story’s Eq. Ju. §§ 1220, 1227, 1230, 1231; Strother v. Steamboat Hamburg, 11 Iowa, 59; Johnson v. Smith, 11 Humph. 396; Sheppard v. Taylor, 5 Pet. 675; Butt v. Ellet, 19 Wall. 544.

In Thompson v. Spinks, 12 Ala. 155, this court said : “ It is manifest, the effect of our statute is, that rent in arrears, or falling due, is merely a debt due from the tenant to the landlord, for the payment of which the latter has a lien on the crop grown on the premises.” So, in Price v. Pickett, 21 Ala. 741, it was said: “ Where the possession is not adverse, the true owner is entitled to recover the rents which have been received by another. In such case, it is mon%y had and received to the use of the owner; and as the person to whom the rent was paid would be compelled to account in equity, he may also be held responsible in the equitable action for money had and received.”

In McDonald v. Morrison, 50 Ala. 30, this court said : “The landlord has a lien on the crop grown on rented land, for the rent for the current year. This is a lien Avhich grows out of the contract, and the process of attachment is allowed to enforce this lien. It is not created by the levy of the *455attachment, and it is not dissolved by the death of the de-r fendant and the insolvency of his estate, so far as the crop grown on the rented land is concerned.”—See, also, Smith v. Crockett, Minor, 277.

The cases of Blum v. Jones, 51 Ala. 149, and Dulaney v. Dickerson, 12 Ala. 601, are based on the theory, that the landlord’s lien is neither a jus ad rem, nor a jus in re. It confers no title to the property. It is simply a right to have so much money carved out of the proceeds. Trespass, detinue, or trover, can not be maintained on such a right. But the case of Thompson v. Merriman, 15 Ala. 166, had explained Dulaney v. Dickerson, and showed that, when the crop had been converted into money, and such money was in the hands of a third person, who had purchased the crop with a knowledge of the lien, then assumpsit, for money had and received, would lie. Blum v. Jones is scarcely reconcilable with Thompson v. Merriman. We think the last named case asserts a correct legal proposition.—See Fowler v. Rapley, 19 Wall. 328; Hussey v. Peebles, 53 Ala. 432.

We hold, that the landlord’s lien for rent passed to the appellants in this cause, by the elder Foster’s indorsement of the rent-note to them. There was, however, when this suit was commenced, no statute which authorized the transferree of a contract for rent, to sue by attachment.—Foster v. Westmoreland, 52 Ala 223. But, there being a lien on the property, which had passed by the transfer to Westmoreland & Trousdale, the case falls directly within the original jurisdiction of the Chancery Court.—See Price v. Pickett, supra; 2 Story’s Eq. Ju. §§ 1231, 1227. And this jurisdiction is not taken away, although the common-law court may now administer co-extensive relief.—Waldron v. Simmons, 28 Ala. 629.

Of course, this transfer of the lien for rent is subject to another well-defined rule of law; namely, that if, before the maturity of the rent contract, the reversion of the freehold passes to another, the rent, as an incident, will pass and enure to such new owner.—English v. Key, 39 Ala. 113; Tubb v. Fort, at present term.

Leases, or lettings to rent, are often made in this State, without any written contract signed by the landlord. Such writing is not necessary, unless, by the terms of the contract, it is not to be fully performed within a year.—Code of Ala. § 2121, subd. 5; Crommelin v. Theiss, 31 Ala. 412; Scoggin v. Blackwell, 36 Ala. 351. There is nothing in the pleadings or evidence, in this cause, which tends to negative a valid contract of renting, and we hold that, under the averments and proofs in this cause, complainants have a subsisting lien on *456the cotton, and its proceeds, for the payment of the note exhibited to the bill.

The bill fails to state whether Mrs. Foster’s (George W., sr.) separate estate is statutory or equitable. Ordinarily, this should be shown; for the rights and powers of both husband and wife, under these two classes of estates, are essentially different.—See Reel v. Overall, 39 Ala. 138. The answer, in effect, says that her estate is statutory. This, however, can not aid a defective bill. But this inquiry is not necessary in this case. Mrs. Foster is not claiming the cotton, or its proceeds, so far as we are informed. But there is a more conclusive reason than this. The bill does not aver that the plantation, for the rent of which the note was given, was the separate estate of Mrs. Foster. True, the note is payable to G. W. Foster; trustee for Mrs. S. J. Foster; and the bill must be construed as averring the same thing. This is mere descriplio personae, and, without more, is wholly insufficient to establish her right.—See Tate v. Shackelford, 24 Ala. 510; Agee v. Williams, 27 Ala. 644. The note on its face, and as averred, imports only a contract made with G. W. Foster, sr. The answer sets up that it was of the statutory separate estate of Mrs. Foster; but this averment is not proved. Even if it were proved, the note only represents the income and profits, not the corpus, of her separate estate. For the disposition of such income and profits, the law does not require a writing signed by husband and wife, attested by witnesses, or acknowledged, &c., under the Code of 1876, §§ 2707-8.

We think, under the proof in this cause, B. C. Foster must be charged with constructive, if not actual notice, of complainants’ lien, before he acquired any right to the cotton; and that the lien exists against him. The replevin bond he executed either gave him actual notice, or was sufficient to put him on inquiry.—Johnson v. Thweatt, 18 Ala. 741; Dudley v. Witter, 46 Ala. 664.

We might do injustice to some of the parties, in the matter of the measure of recovery, if we were to render a final decree here. We, therefore, reverse and remand the cause, that it may be proceeded in according to the principles of this opinion.