Frazier v. Thomas

GOLDTHWAITE, J. 1. The common law remedy of distress was abolished by the act of 1812, [Clay’s Digest, 506, § 2,] and therefore, if the landlord had any lien upon the goods of his tenant when this action accrued, it must have been under the act of 1821, which is in these terms: “The crop grown on any rented land in this State, shall not be liable to be taken by virtue of any execution, or removed off the premises of any such rented land, unless the party so taking the same shall, before the removal of the crop from the premises, pay or tender to the landlord or less-, or thereof, or his agent, all money due for the rent of the said premises, at the time of taking such crop in execution; Provided, nevertheless, that such rent or arrears, do not amount to more than one year’s rent, and if more be due, then the party suing out' such execution, paying or tendering to such landlord or his agent, one year’s rent, may proceed to_ execute his judgment, and the sheriff or officer levying the same, is hereby empowered and required to levy and pay to the plaintiff, as well the money so paid for the rent, as the execution money.” [Clay’s Digest, 506, § 3.] It is perfectly clear, this only gives a lien to the landlord on the crop, as against an execution creditor of the tenant: between these, the statute gives a preference to the landlord, but the lien is not created in any instance. 2. It is supposed, however, that the demurrer ought not to have been sustained, because the count contains an express averment, that the plaintiff had a lien on the cotton carried away by the defendant, and as this fact is admitted by the demurrer, the [171] taking must be considered as wrongful. This view is not admissible, because the existence of a lien, is a conclusion of the law from certain facts, and these are necessary to be stated, in order that a judgment may be formed with respect to the existence of the lien, If the precedent matter should be rejected, the count could not be sustained on the assertion, that the plaintiff had a lien upon the cotton. Whether we consider the assertion, that there was a lien as predicated on the facts stated, or as standing alone, the count is alike defective. Judgment affirmed.