Lomax v. LeGrand & Co.

BRICKELL, C. J. 1. The statute declares a lien on crops grown on rented premises, for the rent of the current year. Process of attachment is given, as the remedy for the enforcement of the lien, if the crop is removed, or about being removed from the premises, without the consent of the landlord. If removed, the attachment may be levied on it in the possession of the tenant, or one holding it in his right, or in the possession of a purchaser with notice of the lien. — Rev. Code, §§ 2961-63. Rent, at common law, wás a lien — a charge on the goods of the tenant, remaining on the demised premises. The landlord could distrain, however, only on the premises; and if the goods were removed by the tenant before distress, the lien, or right to charge them, was lost. So, the right to distrain was lost, if not exercised before the expiration of tbe term. There are acts of parliament, modifying- these rules of the common law, enlarging the remedy by distress, and authorizing the landlord to pursue and seize the goods after the removal; which, with changes and alterations, to adapt them to their condition, have been re-enacted in several States of the Union. A material distinction between them and our statutes is, that the removal from the premises, or the expiration of the term, does not impair the hen of the landlord — that the lien is preserved, until the crop [543] passes into the possession of a purchaser without notice.—Governor v. Davis, 20 Ala. 366. 2. A purchaser can not claim protection against the lien, if he has notice of facts, which, if he had pursued, would have enabled him to ascertain its existence. The rule prevails, which is applied when protection is claimed against a prior right or equity — that whatever is sufficient to put a party upon inquiry, is sufficient to charge him with notice. If the want of notice — of actual knowledge, or information— result from the failure to use proper diligence to ascertain whether the fact or right exists, protection against it can not be claimed.—Chapman v. Glassell, 13 Ala. 55; Herbert v. Hanrick, 16 Ala. 597; McGehee v. Gindrat, 20 Ala. 100. 3. The mortgage to the appellees conveys, among other things, “ the entire crop of cotton and corn, which may be made during the present year, on the plantation in M ontgomery county, known as Mrs. C. Lomax’s plantation, which I ” (the mortgagor) “ am cultivating the present year.” If the appellees were claiming a right, legal or equitable, in the premises, acquired from the mortgagor, as paramount to that of Mrs. Lomax in and to the lands, it would scarcely be denied that they are charged and affected with notice of her right and her estate. The recital of the mortgage is, that the plantation is hers, and that the mortgagor is cultivating it the present year. It is equivalent to a declaration that the fee, the ultimate reversion, resides in her, and the right of the mortgagor is to cultivate during the year. This is the nature, character, and extent of the right there asserted; and it would not have been thus limited, if it had been greater. This recital, in our judgment, is full notice to the appellees, of the lien which the law attaches to the relation existing between the mortgagor and Mrs. Lomax. It is notice of the relation; and being notice of that, it is equally notice of the lien which the law attached to it. It is not material that the landlord has not a right of property in or to the crops. The statute simply creates a charge — a right to the satisfaction of the rent, superior to the right of the tenant, and all persons claiming under him, so long as the crop remained on the premises. If removed by the consent of the landlord, the consent is a waiver of the lien. But, if removed without his consent, the lien continues, and he is entitled to pursue and seize the crop by attachment, to enforce the lien, until the right of a purchaser without notice intervenes. Consequently, the landlord can maintain no action which involves, or is dependent on, a right of property, or a right of possession. If the crop is removed by, or, after removal, passes to the possession of, a stranger having notice of the lien, who [544] sells or converts it, thereby rendering unavailing the statutory remedy by attachment for its enforcement, the landlord may maintain an action on the case against him.—Hussey v. Peebles, 53 Ala. 432. 4. The lien is an incident to the relation of landlord and tenant. It is not matter of contract — it is the creation of the law. It may be waived, or relinquished, by the stipulations of the lease, or of the contract of renting. But, in the absence of express, or inconsistent stipulations, in the contract, it springs out of the relation; and whoever is chargeable with notice of the relation, is chargeable with notice of the lien. The notice the statute contemplates, which deprives the purchaser of protection against the lien, is knowledge or information of the right of the landlord, or of facts which ought to have directed his attention to the lien. That the appellees did not know the terms of the contract of renting, or the amount of the rent which was chargeable on the cotton, is not material. If they desired the information, they had full means of acquiring it, and these means they were bound to use; and if they failed to do so, they are not entitled to protection against the lien. 5. The statute contemplates that, as long as the crops remain on the rented premises, they shall be subject to the lien; as at common law, the lien attached to goods upon the demised premises, and was not affected by any alienation of the tenant, until their removal. It was only after removal, that a right could be acquired, which would override or defeat the right of the landlord. — Taylor’s Law of Landlord and Tenant, § 577. The crops being on the rented premises, is notice to all the world of the relation; and all who deal with the tenant must inquire as to the existence of the lien. After removal, the possession of the tenant, severed and distinct from his possession of the premises, is prima fade evidence of ownership, of the right to sell, or otherwise dispose of them. Then notice becomes necessary to charge a purchaser from him. But, in the present case, whatever right the appellees acquired, was acquired by the mortgage executed before the crops were grown — while they were in an immature state, not severed- from the freehold. The delivery of the cotton subsequently was merely in subordination to the title conveyed by the mortgage, and in performance of the duty imposed by it. The appellees are not purchasers, whom a want of notice will under the statute protect. To stand in that relation, their title should have been acquired - after the tenant had removed the cotton from the premises, without notice of the lien of the landlord. The rulings of the City Court were not in accordance with [545] these views; and its judgment is reversed, and the cause remanded.