White v. Miazza-Woods Const. Co.

84 So. 181 | Miss. | 1920

Sykes, J.,

delivered the opinion of the court.

T. J. White, appellant, brought a replevin suit in the justice of the peace court, seéking to recover from appellee certain office furniture. In due course the case reached the circuit court, where it was tried before the circuit judge by agrément, and judgment was rendered in favor of. the appellee. The facts are uncontroverted, and are briefly as follows: In August, 1916, P. A. Allen rented an office from the appellee. Into this office he moved the furniture in controversy. The following September, by written instrument, he sold this furniture to the appellant for the sum of sixty dollars, which was paid in cash In this instrument it was pro-1 vided that Allen could repurchase the furniture for that sum within thirty days. At a later period the option $oi repurchase was extended by agreement to sixty days. Allen, however, failed to exercise this option and repurchase the property. Some time later on Allen left Meridian. He had failed to pay his office rent for several months. Appellant obtained a note from Allen to the effect that Allen had sold this property to appellant and authorizing the appellee to give appellant possession of it. Appellee declined to do so, claiming that it had a claim on the furniture for the unpaid rent of Allen. Appellant then instituted this proceeding.

It is the contention of the appellee that it is entitled to hold possession of this property under section 2851, Code of 1906,.section 2349, Hemingway’s Code). This section reads as follows:

“Goods Not to Be Removed Until Rent Paid. — That no goods or chattels, lying or being in or upon any messuage, lands or tenements, leased or rented for life, years, at will, or otherwise, shall at any time be liable to be taken by virtue of any writ of execution, or other process whatever, unless the party so taking the same shall, before the removal of the goods or chattels from such premises, pay or tender the landlord or lessor thereof, all the unpaid rent for the said premises, whether the day of payment shall have come or not, provided it shall not amount to more than one year’s rent; and the party suing out such execution or other process, paying or tendering to such landlord or lessor the rent unpaid, not to exceed one year’s rent, mav proceed to execute his judgment or process; and the officer levying the same shall he empowered, and required to levy and pay to the plaintiff as well the money so paid for rent, as the money due under the process, and when the rent contracted for is payable, not in money, but in other things, the creditor shall p]ay the landlord the money value of such things.”

Prior to the enactment of this statute in 1894, it was held, in the case of Richardson v. McLaurin, 69 Miss. 70, 12 So. 264, that a landlord did not have a lien on any goods of ¡his tenant except agricultural products of the leased premises. After referring to several prior decisions of the court 'in the opinion, it is stated:

“After these several decisions the Code of 18° ' was adopted, and by it the legislature created in favor of the landlord a lien on all the agricultural products of the leased premises, and did not give him a lien on other goods of his tenant. In view of this apparent acquiescence in the denial of a lien in favor of the landlord, except as the positive creation of statute law, that must now be accepted as the law of this state; and it follows that a purchaser of goods other than agricultural products, etc., of a tenant, on or off the leased premises, who pays value, will be protected in his purchase just as if he had purchased them from another, or as if they were not on such premises; and knowledge by the purchaser of rent due, and that the landlord looks to the goods for piayment, does not hinder a valid purchase of them.”

The court had occasion to construe the statute in question in the case of Brunswick, etc., Co. v. Murphy, 89 Miss. 264, 42 S. 288. In this opinion it is stated that: —This law “has already . . . been construed by us as not subjecting the property of third persons on leased premises to liability for rent.”

That case was also a replevin case.

In the case of Shuler v. Grunewald Co., 113 Miss. 763, 74 So. 659, it is again repeated that: “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. A!s 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.”

Section 2851, above quoted, does not give, the landlord a lien on the property, on the leased premises for his rent. Though the- tenant may be in arrears, he has a right to sell this property for valuable consideration. In this case the appellant was an innocent purchaser for value, without any notice whatever of any rent due at the time of the purchase. This section of the Code can only mean that property belonging to the tenant shall not be liable to be taken by virtue of any writ of execution or other process whatever, unless the rent be paid, etc. In this case the property was not the property of the tenant, but that of the appellant.

The court should have entered judgment in favor of the appellant.

Reversed, and judgment here for appellant.

Reversed.