Harris v. Frank

52 Miss. 155

• Court: Mississippi Supreme Court
• Decided: April 15, 1876
• Status: Published

Opinion

Simrall, C. J.,

delivered the opinion of the court.

J. Y. Harris brought his bill in chancery, on the following ¡state of facts: One of the last days of December, 1872, he ’leased to Newsom a plantation in Bolivar county, for the year 1873, for $1,240, and also sold him certain personal effects, which, added to the rent, made an indebtedness of $2,000, ■embraced in a promissory note due 1st November of that year. To secure this indebtedness Newsom executed a deed of trust including these effects and also the crop to be grown on the premises.

Harris sued out a distress warrant for his rent, which, among •other things, was levied on a lot of seed cotton. Frank & JEleinach, under a writ of replevin, took so much of the cotton as liad been ginned, amounting to about eleven bales. Being about to remove the cotton out of the state, they were enjoined by Harris, who claimed it under his attachment and deed of' trust.

Frank & Reinach base their claim on a mortgage made by one Taylor to them, to secure a past indebtedness, and also, for supplies to be furnished in making a crop. This mortgage, bears date in April, 1873, and was duly recorded, as was the trust deed in favor of the complainants.

It seems that Taylor rented from Newsom thirty-five acres, part of the farm, and agreed to pay four bales of cotton of ’ the first picking for rent.

The cotton, the subject of this controversy, was produced by him. The chancellor on the final hearing decreed that. Harris, the original landlord, and lessor of Newsom, was-entitled to four bales of cotton, the amount stipulated to be paid by Taylor to his immediate lessor, Newsom, and directed that they should be so applied.

From that decree Harris appealed. The argument most, strongly pressed for the appellant is that, by virtue of his deed. in trust, which is senior by three or four mouths to the mort- ■ gage of the appellees, and which by its terms covered all the -, crop to be grown on the premises, he has the better right to. the eleven bales than the appellees.

That position would be entirely tenable if the cotton, or all. of it, were the property of Newsom, or had been produced by Mm. It would be also tenable if the crop produced on the-, premises by Taylor, the sub-tenant of Newsom, were to the full extent liable to the mortgage of his landlord to Harris.

Newsom, by Ms lease, became the owner of the property for the year. That was Ms term. There being no restrictions • upon him he was competent to sell Ms interest or term in toto, by wMch act the purchaser would become the assignee of- the. term, and would be responsible directly to Harris for the rent,. and also all the covenants which ran with the land.

It was also competent for Newsom to sell a part of the prem- - ises for the year, as he did, to Taylor, wMch constituted him’ assignee pro tanto, and devolved upon him all the burdens proportionally which the lease imposed upon'his immediate lessor.

The doctrine of the common law is that, if the entire interest in different parts or parcels of the land passes by assignment to separate'and'distinct individuals, a covenant which runs with the land, will attach on each parcel pro tanto. Co. Litt. ; Van Horne v. Crain, Paige, 435.

The assignee off each part would be answerable for his proportion of any charge upon the land, which was a common burden. Astor v. Miller, 2 Paige’s Ch., 78.

The entire premises demised' to Newsom were subject to the burden of $1,240 rent. The formal lease executed by Newsom to' Taylor operated to assign thirty-five acres, part of the entire plantation, cum onere of its proportional part of the rent, which was an incumbrance common to the entire premises.

That was the measure of the right of the original lessor, Harris, against the sub-tenant, Taylor. The complainant and appellant does not object to the decree because the chancellor did not'mate a just apportionment of the rent upon the subtenant, but because he did not hold the entire eleven bales •under his deed of trust.

That incumbrance could only take effect as a security upon such productions of the demised premise's as Newsom had power to control.

Harris, as we have seen, could hold the sub-tenants, as assignees of Newsom, responsible for their aliquot part of the rent reserved by him from their assignor, and Newsom’s deed in trust was a security on the crops of the sub-tenants to that extent and no further.

This case is distinguishable from that of Doty et al. v. Heath, adrn’r, etc., decided at this term, in this feature ; that in that case the laborers or producers of the crops were not tenants of the land, but only tenants in common with the landlord in the products of the soil.

The decree is affirmed.