Ehrman v. Oats

101 Ala. 604

• Court: Supreme Court of Alabama
• Decided: November 15, 1893
• Status: Published

Opinion

COLEMAN, J.

This was an action on the case by the appellant Ehrman against the defendant Oates. A demurrer was sustained to the complaint, and the plaintiff, declining to amend or plead further, judgment was rendered for the defendant. The only question presented by the record is, whether an action on the case will lie in favor of a landlord against one, with notice, to whom a tenant pays the money, the proceeds of property sold by the tenant upon which the landlord held a lien for rent. The statute gives the landlord a lien upon the crops grown upon the rented premises, and provides that the lien may be enforced by attachment, which may be levied upon the crops or proceeds thereof. — Code, §§ 3056, 3063. Any person who knowingly, by purchase or otherwise, deprives the landlord of the opportunity of enforcing this lien is guilty of a tort, and is liable in an action on the case. The right of action is given against those who wrongfully deprive the landlord of his remedy. — Hussey v. Peebles, 53 Ala. 434; Westmoreland v. Foster, 60 Ala. 455; Price v. Pickett, 21 Ala. 741.

The legal effect of the lien given to the landlord does not invest the landlord with a jus ad rem or a jus in re, but a prior, right of payment; the right to have so much money carved out of the proceeds. When the property has been converted into money by the tenant, the proceeds is subject to levy in his hands, or the hands of one who receives it with knowledge of the lien. This is the effect of section 3063 of the Code.

Action in case will lie against a tenant who by sale or otherwise disposes of the property in such manner that the lien can not be enforced by attachment, and also against one who, knowing of the lien of the landlord, places the crop or property beyond the remedy of the landlord. If the tenant sells the property and has the proceeds in possession, or if he pays the money over to a third person, who has notice that it is the proceeds of property upon which there is a lien, assumpsit will lie to recover it; or a court of equity will declare a trust. Pickett’s Case, supra; Westmoreland Case, supra. The statute says the proceeds are subject to a levy, (Code, § 3063), and we have held the effect of this section was to extend the lien to the proceeds of the crop. — Scaife & Co. v. Stovall, 67 Ala. 243; Barnett v. Warren & Co., 82 Ala. 557, 2 So. Rep. 457.

There is no averment in the complaint that the defendant has ever converted or removed the cotton or its proceeds. Non constat, but that the cotton or its proceeds is held by the defendant, subject to the remedy of the landlord. Until there has been some act by the defendant by which the lien is destroyed, or the lien can not be enforced upon the property or its proceeds, we can not say the defendant is liable in case. The averment, that the lien was lost, is a mere conclusion of the pleader, and does not follow from the facts averred in the complaint. The complaint is defective, and subject to demurrer.

Affirmed.