Kirkpatrick & Co. v. Boyd

STONE, O. J. It is objected for appellants, that the alleged judgment under which Boyd & Boyd acquired their title Jto the land, was in fact no judgment, because the attorney appointed for the purpose is not shown to have confessed any judgment, and the record fails to show that Tanner, the defendant in that suit, was otherwisé brought into court. Coming before us collaterally, as this question is attempted to be pre-'' [452] sented, we are not prepared to say there is anything in the abjection, even if we concede it is raised by the record. But the record fails to raise the question. In the trial below, a jury was waived, and the testimony was submitted to the court for trial and decision by him. Tie made a special finding of the facts, and that finding must be treated as we would treat a special verdict. One of the special facts found by the trial court was, that “the above named plaintiffs [Boyd & Boyd] recovered judgment against John T. Tanner, in the Circuit Court of the United States, ... on the 2d day of November, 1887, for the sum of,” &c. The exception reserved is in the following language: “To which judgment of the court the defendant excepted.” The question of the confession of judgment ml non is not shown to have been mooted in the court below, and the exception does not bring it before us. Boyd & Boyd recovered a judgment against Tanner, November 2, 1887. Execution was issued on said, judgment November 7, 1887, and came to the hands of the United States marshal on the same day. This execution was levied on the plantation known as the “Ragland place,” as Tanner’s property, January 2, 1888, but from some misdescription the process was returned without a sale. An alias execution was issued April 21, 1888, was levied on the land May 20, 1888, and pursuant to advertisement duly made, the marshal sold the lands, June 4, 1888. Boyd & Boyd became the purchasers, and received the marshal’s deed the next day. Within ten days after that time, and while the crops on said land were still growing and immature, Boyd & Boyd gave written notice to Tanner, and the tenants cultivating said land, that they claimed ahd demanded the rents accruing for that year, and the possession of said lands. The foregoing are the facts on which Boyd & Boyd base their claim to the rent money. Tanner, defendant in the judgment, let the lands to rent for the year 1888, by agreement entered into December 26, 1887, and to secure the agreed rent took from the lessees, or tenants, their non-commercial, sealed note, or bond, for the sum of one thousand dollars, payable to himself, and due December 15,1888. This paper he traded for value to C. E. Hatcher & Co., by blank indorsement without date, and O. E. Hatcher & Co., subsequently, on February 4,1888, traded and indorsed it to Kirkpatrick & Co., as collateral security for a. debt due them from C. E. Hatcher & Co. ' Neither C. E. Hatcher & Co., nor Kirkpatrick & Co., had notice of Boyd & Boyd’s claim, or lien, at the time they severally acquired the ■rent note or bond. These are the facts which go to make up the alleged right of Kirkpatrick & Go. to the proceeds of the [453] -rent note. The tenants having paid the rent money into court, and having been discharged by consent of the parties, the question is, whether Boyd & Boyd, on the one hand, or Kirkpatrick & Oo., on the other, are entitled to the money, less the sum of fifty dollars, which, by mutual agreement, was applied otherwise. The Circuit Court, adjudged that Boyd & Boyd were entitled to the money. There are authorities which hold that, when real estate is sold at public judicial sale, which is at the time held by a tenant under an undetermined lease, and there is no exception or reservation as to the rent, then all rent which has not been paid, or has not matured and fallen due at the time of the sale and conveyance, passes with the freehold, and becomes the property of the purchaser, even though there may have been a previous attempt to assign such non-matured rent contract to a third person. One reason which may be given for the ruling is, that unpaid and immatured rent, promised for use and occupation of land for a term not yet fully expired, is practically the usufruct, or product of the realty, and is part and parcel of it; and that hence a conveyance of the land is a conveyance of its future product.—Bank of Pensylvania v. Wise, 3 Watts, 394; Van Wicklen v. Paulson, 14 Barb. 554; Stout v. Kean, 3 Har. 82; Martin v. Martin, 7 Md. 368; Townsend v. Isenberger, 45 Ia. 670; 2 Taylor Landl. & Ten. (Sth Ed.) § 447, and note. Several of the cases we have cited are based substantially on the reason we have given. We need not, in this case, go to the full extent of the principle stated, and we leave that question undecided until it comes properly before us. Before Tanner granted the lease in this case, the execution of plaintiffs was in the hands of the marshal, and operated a lien on all the leviable interest which Tanner then held in the land. Its use, enjoyment and occupation were among the valuable attributes it possessed. It is these attributes which mark and distinguish the superior value of a title with present right of possession, as contrasted with an estate in remainder or reversion, the term of the particular estate not having expired. No one will question the greater market value of an estate with the right of present enjoyment, than of a mere remainder or reversion in the same land, with no right of present enjoyment, or present usufruct. Now, on all these elements of value and of vendible propertjq Boyd & Boyd liad a lien for the enforcement of their execution, which Tanner was without the power to impair, by any individual act he might attempt to perform. No one will deny that he was without power to defeat the lien by a sale of the land. A lease is a [454] .qualified sale ; a sale of a term, instead of a sale .of the fee* A lessee acquires an estate by his lease, which may be levied on and sold under execution; an estate-less than a freehold, .but still an estate. It may run for any number of years, not exceeding twenty. Can it be supposed, that, after the lien attached, Tanner could have let the land for a long term, say twenty years, disposed of the rent contract to a third party, and thus have reduced the available value of the plaintiff’s lien by one half or more ? And if not for twenty years, for what shorter term could he have made a valid lease, and a valid disposition of the rent contract?—Kane v. Mink, 64 Ia. 84. The Circuit Court did not err in its judgment. There is nothing in our former rulings which is opposed to what we have above declared.—Tubb v. Fort, 58 Ala. 277; Coffey v. Hunt, 75 Ala. 236; Steed v. Hinson, 76 Ala. 298; Ala. Gold Life Ins. Co. v. Oliver, 78 Ala, 158 Oliver v. Ala. Gold Life Ins. Co., 82 Ala. 417. Affirmed.