Gaines v. Keeton

68 Miss. 473

• Court: Mississippi Supreme Court
• Decided: April 15, 1891
• Status: Published

Opinion

Coopek, J.,

delivered the opinion of the court.

If the correctness of the propositions of law argued by counsel for complainants be conceded, we think the decree of the chancellor should, nevertheless, be affirmed. Not content to rest the security of their demand against their tenant upon the provisions of law by which a lien was given, they carved out and required another and apparently inconsistent security, which, on its face, secured a trust-deed to a third person, whose agency for the landlords was not disclosed by the instrument.

It is not necessary for the decision of the present controversy to hold, as do some courts, that the mere taking of other security is a waiver of the statutory lien. We confine our decision to the reason that the parties have so dealt in reference to the subject-matter of the lien that they ought not, as against third persons who have purchased the property in good faith, to be permitted to repudiate the security selected by their agent to secure a debt professedly due to him, and resort to the lien secured by law to themselves as landlords. As against third persons, at least, we think complainants must be confined to the security of the deed of trust. Goble v. Gale, 41 Am. Dec. 219. As between complainants claiming under the deed of trust, executed by the principal tenant, and the defendant claiming by purchase from the sub-tenants, owners of the property, the defendant’s right is superior. The tenants of complainants could not, by mortgage, incumber the crop of others, even though grown upon the leased lands.

The decree is affirmed.