M. H. White & Co. v. Winslow & White

WalKek, J., after stating the.case: It will be seen that the landlord never relinquished any part of his rent, nor did he assume any liability for the price of the horse as an advancement to his tenant. He merely released his lien to the extent *42 of one bale of cotton, without specifying which one of the thirteen. The defendants looked solely to the tenant for payment of the price, though they may have relied upon any lien acquired by the transaction, but this lien was manifestly subject to the prior right of the plaintiffs. No title to the bale of cotton passed to defendants - by virtue of the release of the landlord, nor did it vest any lien in them. Their lien, if any, was given by the tenant, and the landlord simply released his prier lien, transferring it to the remaining twelve bales of cotton. This is the legal and actual nature of the transaction. It is perfectly evident that the landlord did not intend to part with any of his rent in favor of the defendants. All he did was to withdraw his lien from the one bále.and accept the twelve remaining” bales as the only security for his rent. He did not impair the next prior right of plaintiffs, as second lienees, by merely removing his lien from the one bale of cotton, but, on the contrary, made it the first lien thereon. The principle of Powell v. Perry, 127 N. C., 22, therefore, does not apply. In that case it was held that a lien may accrue for supplies, either paid for by the landlord or advanced at his request and upon his credit. The whole theory of the defendant is based upon the wrong assumption, that the landlord became in any way responsible for the price of the horse, so as to bring the case within the above decision. The distinction between releasing a lien and giving one must be very clear. Defendants acquired a lien by the delivery of the bale of cotton, but their right was derived from the tenant, and the landlord’s release merely discharged his prior encumbrance, thereby making the second lien of plaintiffs effective. There is another view which occurs to us. A lien is so far an incident of the debt which it secures that it cannot be assigned without at the same time transferring the debt, or at least some part of it, which was not done here. 25 Cyc., 678. It was held in Buchner v. McIlroy, 31. Ark., 631, that “while a party holding a debt secured by lien cannot convey the lien to a stranger, without also assigning the debt, he may release the *43 lien upon the property to one claiming an interest or junior lien on the property.” The landlord surely has assigned no part of his debt for the rent. It follows that defendant took the bale of cotton .subject to plaintiffs’ prior lien, and the court erred in not so holding. Reversed.