Saulsbury, Respess & Co. v. McKellar

Jackson, Judge. McKellar sued Saulsbury, Respess & Co., in assumpsit, on an implied promise on the part of the defendants, to pay him the value of certain cotton on which he had a lien, the same having been raised on land which McKellar had rented to certain tenants by the name of Curry, and which the defendants had converted to their own use, after notice of plaintiff’s lien, and alleging that they received the cotton subject to said lien. The defendants iffeaded the general issue, and denied all notice of the lien. The jury, on this issue, found for the plaintiff, when the defendants moved for a new trial, which motion was overruled, and the defendants excepted. "When this case was brought by the defendants here before, we granted a new trial, on the ground that the court [305] erred in charging the jury, that if land was rented to the Currys by McKellar’, and cotton was raised on that land, that then they might infer that this cotton at Saulsbury, Eespass & Co.’s warehouse, stored as the cotton of Peter M. Curry, and sold by them, was the cotton raised on McKellar’s farm, and that it devolved on defendants to prove that it was raised elsewhere. "We held that the burden was on McKellar, the landlord, to show that this cotton was raised on the land which he had rented to the Currys. 1. On the present trial, now brought here, it seems that the plaintiff, McKellar, assumed this burden, and proved that the cotton was raised on his land, provided certain evidence was admissible. And the first question is, was it legal for McKellar to testify that the Curry who carried the cotton to Saulsbury, Respass & Co.’s warehouse, while taking it there on his wagon, told him (McKellar) that it was raised on his land. If that evidence is legal, the fact was proved; if it was not legal, the fact that the cotton was raised on McKellar’s land, and that he had the special lien, was not proved. We think that it was admissible and legal to prove by these sayings of Curry, while in possession of the cotton, that it came from McKellar’s, and that McKellar had the landlord’s lien. The principle is, that what one in possession of property says derogatory to his title, is admissible, if made before any adverse title accrued. 8 Ga., 66; 15 Ga., 202 ; 20 Ga., 240. Here, Saulsbury, Eespass & Co. claimed title from Curry, and so did McKellar hold his lien, and the jninciple ruled in the cases cited fully covers the question now made in this case. 2. It would seem, then, that the plaintiff has brought himself within our ruling before, and is entitled to recover. The proof was by the plaintiff, (and it'was with the jury to believe him or not, as they saw fit,) that the defendants had notice of the lien, admitted that they had the cotton, and that it was enough to pay off what the Currys owed the [306] plaintiffs and themselves, too, and that he was, by this statement, prevented from levying a distress warrant which he liad sued out. These facts raised an implied assumpsit to pay McKellar when the cotton was sold, and, under all the facts, if he was believed, he was entitled to recover. It will be seen that this case differs from 57 Ga., 404, quoted by counsel for plaintiffs in error. A distress warrant was sued out here, or about to be, when the plaintiff was lulled into security by the implied promise that the defendants would pay him when they sold the cotton; while there, nothing of the sort occurred, and the question was, in that case, in whom was the title — in the landlord or the tenant ?■ — and it was held to be in the tenant, but subject to the lien of the landlord. There was no implied promise at all there, or any lulling the landlord into security, but a naked attempt to waive the tort and sue in assumpsit on the title of the landlord. 3. In respect to the priority of the landlord’s lien,on the crops raised on his land for the year he rented it, there can be no doubt. It has been, over and again, so ruled by this court, and the Code itself is plain. Code, § 1977. Notliingin 57 Ga., 404, antagonizes the principle that the lien of the landlord on the crop raised on his land the year when he rented it, dates from the maturity of the crop ; but the doctrine is asserted there. In that case, however, the landlord attempted to assert his priority of lien for the rent of other lands rented to the tenant, as well as the particular tract or lot which made the crop levied on; and we held that his lien was special and superior as to the rent of the land on which the crop was raised, dating from maturity of crop as to that rent; but that it was general, and dated from the levy on the crop as to the other land which had not made the crop levied on. On the whole, there have been three verdicts, all for the plaintiff; the verdict this time is sustained by the evidence, and meets with the approval of the judge who tried the case; no law has been violated, and we feel constained to [307] end the litigation by affirming the judgment. See 57 Ga., 277. Judgment affirmed.