The Judges delivered opinions seriatim.
SeuRáll, C. J.:
This case was once before in this court, and will be found reported in 51 Miss. 825. The question then presented was, whether Westmoreland, who had purchased two bales of cotton from one of Wooten’s tenants, was liable in assumpsit for its value.
The cotton was under the lien created by the act of 1873 (Pamph. Acts, 79) in favor of the landlord, to whom there was due a balance for rent. The tenant had removed the cotton from the demised premises, and sold it to Westmoreland. The decision was, that the purchaser was not liable to the landlord for the value of the cotton, or so much of the value as would satisfy the balance due him for rent.
On the return of the case to the Circuit Court, the demand against Westmoreland was presented in a new form. In effect, the form of the action was changed from assumpsit to the special action on the case. Westmoreland was charged with a tortious disposition and removal of the cotton, so that Wooten could not enforce his lien upon it.
The cotton was offered for sale by the tenant, at a railroad station in Marshall County. At the time Westmoreland bought, he did not know that Wooten had any claim upon it, nor was he cognizant of any facts that would suggest inquiry. Before he shipped the cotton to a market out of this State, Wooten informed him of his claim on the cotton and made a demand for it. He declined to surrender it, or to point it out, so that it might be taken into possession by an officer who had a writ authorizing its seizure.
[426]*426From, the verdict and judgment in favor of the defendant, Wooten has removed the case into this court by writ of error.
The first section of the act of the 17th of April, 1873 (Sess. Acts, p. 79), gives a lien to the landlord on the crops raised on the demised premises (which applies to the whole crop), to secure an equitable division “ before such crop, or any part thereof, shall in any manner be disposed of, or removed from the premises on which it was produced.” The idea advanced is, that the tenant shall not dispose of, or remove the commodities from the premises, until there has been a proper division of them, so that the landlord shall get his part for the rent.
The same idea is distinctly intimated in the third section, which denounces a penalty against any person who shall violate the provisions of this act by selling, disposing of, or removing any crop, or part thereof, before the interests of the parties interested have been separated by a division as contemplated in the first section. This statute, together with that of the 5th of April, 1872 (Acts, p. 131), of which it is an amendment, gives reciprocal liens to the tenant, cropper on shares, laborer for wages, etc., so as to secure to each his interest, and its segregation from other interests, “ before the crop shall be sold, disposed of, or removed.”
The crop is treated as a common mass, in which several parties have interests, and the intent is that none of them shall sell, dispose of, or remove, any part of it until these several interests have been adjusted and separated.
The lien takes hold of the agricultural products as an entirety, and is primarily designed to retain them on the land until the parties who have interests have had a division. The remedy devised by the act of 1872 is in aid of an enforcement of the lien. It is adapted to those cases where the products can be taken into possession by the officer, and held amenable to the ultimate decision.
But there are cases where the statutory remedy would be [427]*427abortive, because tbe crops bad been so disposed of that no seizure could be made.
I think the rule is general that, to prevent a failure of justice, or to enforce a clear and well-defined legal right, the injured pai’ty may maintain the special action on the case whenever he shows that lie has sustained damage from the tortious act of another, for which the established forms of law furnish no remedy. That is very much the formula in which accredited authors state it.
It was held to be the proper form of action in Hussy v. Peebles, 53 Ala. 438, to redress the landlord for the tortious removal and disposition of cotton, under a statute similar to ours.
The right which Wooten, the landlord, had, was that the cotton should remain on the demised premises until he had got his portion for rent. The wrong which was done to him was the removal of the cotton by Smith, the tenant. Whether Westmoreland participated in the tortious act by which the cotton was lost to Wooten, can be answered only by a consideration of his connection with the cotton. It was decided in this case (reported in 51 Miss. 825) that the landlord did not have such interest in the cotton as conferred a right of property; and could, therefore, maintain no action at law, which rested upon that title.
In Grant v. White, 9 Iowa, 153, it was said that the statute of that State which created a ‘ ‘ lien on the crops and other effects used on the demised premises, was analogous to, and of the like virtue of, that class of liens in the common law accompanied with and dependent on possession.” In Webb v. Marshall, 13 Wall. 15, the same force was given by the Supreme Court of the United States to the lien’of the landlord, under the act of Congress of 1867, applicable to the District of Columbia. This .act gave “a tacit lien on the personal chattels of the tenant situated on the premises, * * * the lien to commence with the tenancy, and continue for three months after the rent became due,” etc.
[428]*428Iii the case last cited, and in 16 Wall. 330, the attention of the court was directed to the scope of the lien, and the consequences of removal of effects within the time limited for its continuance. The lien took effect from the beginning of the term, and attached to the effects then on the premises, and upon others as they were brought there. It was said, referring to the ruling of the Iowa court in the case cited (supra), that the lien impressed itself on the effects of the tenant, rather as a “ mass ” than upon each article in detail ; and the deduction from these premises was, that if the goods were removed and sold in due course of trade, the lien would be lost.
The lien would take hold of all the goods which the shopkeeper had, or might put in his storehouse; and yet, his business was to sell to his customers and replenish his stock. If the goods could be followed by the landlord into the possession of the purchasers, it would so embarrass that sort of mercantile business that it could not be safely carried on. Pressed by the serious and disastrous results which would ensue if that effect were given to the lien, the courts of Iowa and Missouri have held that, whether the effects of the tenant be the products of the farm, or goods on urban premises, the lien is rather upon the mass than the detail; and, therefore, if parcels are sold and removed in due course of trade, bond fide, the lien is lost. Certainly so if, after removal, they are bought in good faith, and in ignorance of the landlord’s claim. The landlord would not be predjudiced by a fraudulent removal.
Knox v. Porter, 18 Mo.
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The Judges delivered opinions seriatim.
SeuRáll, C. J.:
This case was once before in this court, and will be found reported in 51 Miss. 825. The question then presented was, whether Westmoreland, who had purchased two bales of cotton from one of Wooten’s tenants, was liable in assumpsit for its value.
The cotton was under the lien created by the act of 1873 (Pamph. Acts, 79) in favor of the landlord, to whom there was due a balance for rent. The tenant had removed the cotton from the demised premises, and sold it to Westmoreland. The decision was, that the purchaser was not liable to the landlord for the value of the cotton, or so much of the value as would satisfy the balance due him for rent.
On the return of the case to the Circuit Court, the demand against Westmoreland was presented in a new form. In effect, the form of the action was changed from assumpsit to the special action on the case. Westmoreland was charged with a tortious disposition and removal of the cotton, so that Wooten could not enforce his lien upon it.
The cotton was offered for sale by the tenant, at a railroad station in Marshall County. At the time Westmoreland bought, he did not know that Wooten had any claim upon it, nor was he cognizant of any facts that would suggest inquiry. Before he shipped the cotton to a market out of this State, Wooten informed him of his claim on the cotton and made a demand for it. He declined to surrender it, or to point it out, so that it might be taken into possession by an officer who had a writ authorizing its seizure.
[426]*426From, the verdict and judgment in favor of the defendant, Wooten has removed the case into this court by writ of error.
The first section of the act of the 17th of April, 1873 (Sess. Acts, p. 79), gives a lien to the landlord on the crops raised on the demised premises (which applies to the whole crop), to secure an equitable division “ before such crop, or any part thereof, shall in any manner be disposed of, or removed from the premises on which it was produced.” The idea advanced is, that the tenant shall not dispose of, or remove the commodities from the premises, until there has been a proper division of them, so that the landlord shall get his part for the rent.
The same idea is distinctly intimated in the third section, which denounces a penalty against any person who shall violate the provisions of this act by selling, disposing of, or removing any crop, or part thereof, before the interests of the parties interested have been separated by a division as contemplated in the first section. This statute, together with that of the 5th of April, 1872 (Acts, p. 131), of which it is an amendment, gives reciprocal liens to the tenant, cropper on shares, laborer for wages, etc., so as to secure to each his interest, and its segregation from other interests, “ before the crop shall be sold, disposed of, or removed.”
The crop is treated as a common mass, in which several parties have interests, and the intent is that none of them shall sell, dispose of, or remove, any part of it until these several interests have been adjusted and separated.
The lien takes hold of the agricultural products as an entirety, and is primarily designed to retain them on the land until the parties who have interests have had a division. The remedy devised by the act of 1872 is in aid of an enforcement of the lien. It is adapted to those cases where the products can be taken into possession by the officer, and held amenable to the ultimate decision.
But there are cases where the statutory remedy would be [427]*427abortive, because tbe crops bad been so disposed of that no seizure could be made.
I think the rule is general that, to prevent a failure of justice, or to enforce a clear and well-defined legal right, the injured pai’ty may maintain the special action on the case whenever he shows that lie has sustained damage from the tortious act of another, for which the established forms of law furnish no remedy. That is very much the formula in which accredited authors state it.
It was held to be the proper form of action in Hussy v. Peebles, 53 Ala. 438, to redress the landlord for the tortious removal and disposition of cotton, under a statute similar to ours.
The right which Wooten, the landlord, had, was that the cotton should remain on the demised premises until he had got his portion for rent. The wrong which was done to him was the removal of the cotton by Smith, the tenant. Whether Westmoreland participated in the tortious act by which the cotton was lost to Wooten, can be answered only by a consideration of his connection with the cotton. It was decided in this case (reported in 51 Miss. 825) that the landlord did not have such interest in the cotton as conferred a right of property; and could, therefore, maintain no action at law, which rested upon that title.
In Grant v. White, 9 Iowa, 153, it was said that the statute of that State which created a ‘ ‘ lien on the crops and other effects used on the demised premises, was analogous to, and of the like virtue of, that class of liens in the common law accompanied with and dependent on possession.” In Webb v. Marshall, 13 Wall. 15, the same force was given by the Supreme Court of the United States to the lien’of the landlord, under the act of Congress of 1867, applicable to the District of Columbia. This .act gave “a tacit lien on the personal chattels of the tenant situated on the premises, * * * the lien to commence with the tenancy, and continue for three months after the rent became due,” etc.
[428]*428Iii the case last cited, and in 16 Wall. 330, the attention of the court was directed to the scope of the lien, and the consequences of removal of effects within the time limited for its continuance. The lien took effect from the beginning of the term, and attached to the effects then on the premises, and upon others as they were brought there. It was said, referring to the ruling of the Iowa court in the case cited (supra), that the lien impressed itself on the effects of the tenant, rather as a “ mass ” than upon each article in detail ; and the deduction from these premises was, that if the goods were removed and sold in due course of trade, the lien would be lost.
The lien would take hold of all the goods which the shopkeeper had, or might put in his storehouse; and yet, his business was to sell to his customers and replenish his stock. If the goods could be followed by the landlord into the possession of the purchasers, it would so embarrass that sort of mercantile business that it could not be safely carried on. Pressed by the serious and disastrous results which would ensue if that effect were given to the lien, the courts of Iowa and Missouri have held that, whether the effects of the tenant be the products of the farm, or goods on urban premises, the lien is rather upon the mass than the detail; and, therefore, if parcels are sold and removed in due course of trade, bond fide, the lien is lost. Certainly so if, after removal, they are bought in good faith, and in ignorance of the landlord’s claim. The landlord would not be predjudiced by a fraudulent removal.
Knox v. Porter, 18 Mo. 245, 246, arose under a statute passed in 1845, which enacted that “the landlord shall have a,lien upon the crops * * * for eight months.” Part of the crop had been sold, and the question was, how far could the landlord pursue it. He could take it, said the court, from an assignee, “if the assignment was voluntary, or taken with knowledge of the lien.”
Nesbit v. Bartlett, 14 Iowa, 485, tested the right of the [429]*429landlord where a removal and sale had been made by a rural tenant. The statute gave the lien on the “crops” and the “ effects used” on the premises. The term commenced in March. In May or* June the tenant took off and sold a cow. The controversy was between the landlord and the purchaser, The purchaser knew that the tenant lived on the premises, and that the cow had been used there three or four months before his purchase ; but he bought in good faith. All the judges agreed that, under the circumstances of this case, the animal was not amenable to the rent. Of the reasons assigned were, “The purchase was in good faith.” “ Common reason [said the court] would dictate that the purchaser took the property freed from the supposed lien.”
The Alabama statute of 1843 prohibited the removal from the premises of the crop, until payment or tender of rent. If removed, or about being removed, an attachment could be taken out by the landlord. Code Ala., sects; 2961, 2963. In Hussy v. Peebles, 53 Ala. 434, it .was held that any person, other than a bond fide purchaser, who made way with the products, was liable to the landlord in an action on the case. Previous decisions had determined that the landlord had a lien, but not a right of property, or of possession. Hawkins v. Gill, 6 Ala. 620.
The principle, with more or less distinctness enunciated by the authorities cited, is that the lien, in certain circumstances, may be extinguished by removal and sale to a bond fide purchaser. It was held, very early after the passage of the English statute of Anne, that the sheriff was liable in an action on case, if he levied upon and removed the goods of the tenant without paying a year’s rent to the landlord, if so much was due, provided he had notice that rent was due. Henchett v. Wilson, 1 Wils. 140; Lane v. Crockett, 7 Price, 566. But a purchaser from the sheriff would get a good title. 7 Bing. 243; Ex parte Groves, 1 Atk. 104.
The statute of 1873 should be regarded as enlarging the security of the landlord. Prior to that, he had no lien ; only [430]*430certain privileges, not accorded to other creditors, for the collection of his debt. The most valuable of these was the right to pursue the goods of the tenant for thirty days, and seize them, provided they had not been bought in good faith. The tenant, under the present law, is the owner (as he was under the former), but subject to a lieu on the whole mass of the products. He has also the possession. The precise extent of the right of the landlord is, primarily, to enforce his right whilst the property is in the mass on the premises. But, if removed, he can put in force the remedies prescribed by the act of 1872; nor is he confined to thirty days, or any other time; his lien lasts as long as his debt, if the products continue in their original form, and have not lost their identity.
Every removal by the tenant, and those who confederate with him, before the landlord has got his interest, is wrongful, because forbidden by the statute, unless it be with the landlord’s consent. The lien conferred by the acts of 1872 and 1873 has been declared by this court to be broader than the courts of other States, as we have seen, give to statutes quite analogous. When this case was formerly before us, Wooten was denied a recovery, because he was confined, as to Westmoreland, to his statutory remedies. His lien was not limited as to time, as was the right to follow and attach goods removed by the tenant from the premises, under sect. 1664 of the Code. Nor was there a saving clause in favor of a bond fide purchaser, as given by the Code. The lien was a super-added security, which the landlord never had before; the prohibition to remove was a support to it. This lien, as we have held, was a charge on the products, which adhered to them, so that the landlord might subject them to his demand. If innocent third persons, in open market, bought cotton, which is of no value to the producer except for its sale value, which is raised, not for consumption or use on the farm, but for market, the only risk to which they were exposed by these statutes was a seizure of the articles in their possession, under the landlord’s right.
[431]*431But, in addition to the lien, the statute prohibits a removal from the demised premises before others having shares in the crop, or other interests in it, have been satisfied.
That offence, punishable under the third section, is a special injury to the landlord, or other person protected by the statute. It is an invasion of a well-defined legal right; and if it should result in the loss or destruction of the right, no specific remedy being provided by the statute for its redress, the special action on the case was devised for such wrongs, and is appropriate. But the act declared to be wrongful is a removal from the demised premises, or such disposition as carries the property off the premises. The tenant, or other person liable, is any one who' participates in such unlawful disposition or removal.
Westmoreland did not remove the cotton, or participate in it. He was not a confederate with the tenant in the tort; therefore he is not liable in this action.
Judgment affirmed.
Campbell, J.:
I favor the affirmance of the judgment, because I hold that the right and the remedy of the landlord are the special creation of the statute, exist in accordance with it, and are limited by it; and, therefore, that the lien may be made effective by the seizure of that on which it operates, and in no other way.
It is just to assume that the Legislature, in conferring a right and providing a remedy for its enforcement, gave the only right or remedy intended to be enjoyed by the objects of its solicitude.
It gave a new right and an appropriate remedy, and provided a penalty against the act by which the remedy would be made unavailing and the right be destroyed. The remedy given by the statute is exclusive of all others.