Toney v. Goodley

Ellison, J. — This is an attachment suit by a landlord against his tenant, brought under the statute concerning landlord and tenant, for the purpose of enforcing the landlord’s lien for rent. The action was instituted within the eight months limited for the — 239 — duration of a landlord’s lien. Interpleader filed his interplea, claiming the property, a large lot of hay, as his own, under a purchase from the defendant, the tenant. The interpleader prevailed in the trial court, and plaintiff has appealed. The first question to dispose of is, whether inter-pleader was the owner of the property at'the time of the levy of plaintiff’s attachment writ. Eor inter-pleader to recover, it must do so on the strength of its own case, without reference to the weakness of the plaintiff’s case. Boller v. Cohen, 42 Mo. App. 97. The facts, briefly stated, are that defendant rented lands of this plaintiff, as well as of other parties, and that.he likewise was engaged in the business of buying and selling hay. He was, at the time of the transaction with interpleader, the owner .of a lot of baled hay, a part of which was produced on the lands he rented of plaintiff, and a part of which was produced upon lands rented of other parties. Whether any part of it was what he purchased from outside parties does not appear. Interpleader entered into the following writing with defendant: “Mr. Joseph Goodley, of Kenoma, Barton county, Missouri, agrees to sell and deliver to Harper-Fricke Grain Co., of Iantha, Barton county, Missouri, six hundred tons of number 1 prairie hay, now in barns at ■ Kenoma, Barton' county, Missouri. Said hay to be weighed and put in cars at Kenoma, Barton county, Missouri, on or before the following date: From the south barn by February 1, 1892, on or before. From the red barn (McKnight’s land), March 1, 1892, on or before. From the north barn or Major’s barn, by June 1, 3892. The said Harper-Fricke Grain Co. to pay for said hay at the rate of $5 per ton. And said Harper-Fricke Grain Co. have this third day of December, 1891, paid to said — 240 — Mr. Joseph Goodley the sum of two thousand dollars ($2,000) cash on said hay, the balance to be paid when delivered on cars at Kenoma, Barton county, Missouri, Mr. Joseph Goodley has $1,700 insurance on said hay. Said policy expires on April 1, 1892. Said policy to be transferred to the Harper-Ericke Grain Co. The said Harper-Ericke Grain Co. to furnish a man to help car hay. Said amount of hay stated above may be two or three cars more or less than the amount above stated. “Jos. Goodley. “Harper-Fricke Grain Co. “Springfield, Greene County, Missouri, Dec. 3, 1891.” Upon payment to defendant of the $2,000 mentioned in this writing he left the country. The barns in which the hay was, as mentioned in the writing, were in or near- the village of Kenoma, the nearest being about two hundred yards, and the furthest about eight hundred yards, from the place where it was to be loaded, on the cars. The evidence disclosed, without dispute, that the hay was inspected by the interpleader and defendant and that it was all supposed to be of the quality called for by the writing. It further appeared that the interpleader was taking all the hay in the three barns, it being supposed that there was not more than six hundred tons of it. It turned out, in point of fact that there was over five hundred tons, and that, with the exception of a quite trivial amount, it was of the quality supposed by the parties. Under these circumstances the trial court properly instructed the jury that there was a transfer of title to the hay from defendant to interpleader. The contract in regard to the sale being reduced to writing took the transaction out of the statute of frauds, and thus left it only necessary that there should be a valid transfer of the title at common law. There — 241 — was here a sale of a specific and ascertained lot of hay at a fixed price. The ascertained or specific article was appropriated by the seller to the buyer, and, indeed, the larger part.of the purchase price paid. It is not a case of an unascertained lot as a part of a general whole. This, undoubtedly, was sufficient to transfer the title to the property to the interpleader. Hamilton v. Clark, 25 Mo. App. 436, and cases cited. The circumstance that defendant was to weigh and deliver the hay on board the cars, with the help of interpleader, does not affect the operative force of the sale as to the transfer of the title. For delivery, as between the parties, it is not essential, since the contract was in writing; and the price was fixed, the weighing being merely for the purpose of getting the total amount thereof. When the terms of the price “are so fixed that the sum to be paid can be ascertained without further reference to. the.parties themselves,” it is sufficient. Cunningham v. Ashbrook, 20 Mo. 559. So then, as between interpleader and defendant, the title and ownership of the latter vested in the former. II. It became necessary to determine the foregoing question in order that another branch of the case may be properly decided. Plaintiff is a creditor of defendant, and as to plaintiff, more is requisite to a valid sale than as to interpleader. As to plaintiff, there must have been an open, actual and continuous change of possession before the levy of his writ of attachment. Having already determined that interpleader was the owner of the property, he necessarily had the right, if he so elected, to take possession by paying the price as it was ascertained, ,if .any. ye;b ^remained to be paid, •above the cash payment. The circumstance that the hay was to be put onto the cars by defendant was for interpleader’s benefit, and did not prevent him from — 242 — waiving the performance of that duty by defendant. The court submitted to the jury the question whether interpleader did take actual, visible and exclusive possession prior to the levy of plaintiff’s writ. The jury could not well have found that such possession was not taken. Interpleader sent two men to the barns. They bought locks and put on two of them. The third, not having a door, they nailed up the opening. The locks were purchased in the village for the avowed purpose of locking the barns and taking possession, and it was fully known that they had taken possession. But more than this, interpleader had loaded some of the hay on cars before the levy. It has now become well recognized law, in this state since the case of McIntosh v. Smiley, 32 Mo. App. 125; s. o., 107 Mo. 377, that, though possession does not follow the sale of chattels in a reasonable time, nevertheless, if possession be had prior to the creditor’s levy, it will make a good sale as against the creditor. From the foregoing it is apparent that interpleader was the owner of the property and had title thereto, not only against defendant, but against this plaintiff as a creditor. III. The remaining question is, has the inter-pleader the title thereto as against plaintiff as a landlord, or, in other words, has he the title to the property free from the landlord’s lien in so far as the present proceeding is concerned. In discussing this matter we will concede (merely as a concession) that the testimony shows enough knowledge on part of interpleader, under our decision in Dawson v. Coffey, 48 Mo. App. 109, to have put him on inquiry and thereby have charged him with knowledge that a part of the hay purchased was the product of plaintiff’s farm of which defendant was the tenant. The question then, will depend upon whether the suit which plaintiff has instituted is a suit — 243 — for the enforcement of his landlord’s lien, or, merely a suit for the collection of a debt as a creditor with a right of attachment. In our opinion the remedy by attachment provided in the landlord and tenant statute can not be used for the enforcement of a landlord’s lien, as such. The statute, section 6384, Revised Statutes, 1889, provides for an attachment for rent in any of the six instances following: When the tenant intends to remove, or has removed, his “property from the leased premises,” or has within thirty days so removed it; or, when he shall dispose of, or attempt to dispose of, any part of the crop grown upon the leased, premises so as to endanger, hinder or delay the collection of the rent; or when the rent is due and unpaid after demand for the same. This statute furthermore provides, that the attachment writ shall be issued against the tenant’s “personal property, including the crops grown on the leased premises.” It will be readily observed that there is no necessary connection between the attachment and the landlord’s lien, since the attachment may be issued on account of the action of the tenant regarding property upon which there is no lien and for causes wholly independent of the lien; and that the lien may exist and be enforced when there is no cause of attachment. It is true that two of the six causes relate to property on which the landlord has a lien and that the attachment writ may be levied upon property upon which he has such lien. This portion of the statute has not changed the law from what it was before this part was inserted by amendment. It is but putting into the form of a statutory enactment the interpretation which the courts gave the statute before their insertion, it being always understood that the word “property” embraced crops. Thus, it appears that in Morris v. Hammerle, 40 Mo. 489, the cause of attachment was removal of “property.”. — 244 — The “property” was the product of the farm and it was held that it must be the removal of an amount so as to put the landlord in danger of losing his rent. And so in Gilliam v. Ball, 49 Mo. 249, the cause of attachment was removal of property. The property consisted of a portion of the crop. So it was decided in Hubbard v. Moss, 65 Mo. 651, that the word “property” which.' the writ was to be levied upon included the crops; and the citation by the court in that case of the section concerning exemptions of the tenant seems to put the conclusion beyond question. The statute then, in the respect now considered, is not different from what it was as found in Wagner’s; statutes, or the revision of 1865. The interpretation of the latter statute was that an attachment was not a remedy for the enforcement of the lien. In Price v. Roetzell, 56 Mo. 500, it was held, Napton, J., speaking for the court, that it was obvious “an attachment, such as the section authorizes, is not to enforce a lien against the crops raised during the year, but to secure the rent from property on the place on which there is-no lien.” And in Hubbard v. Moss, 65 Mo. 647, the supreme court says: “We do not think that the attachment was a remedy provided for enforcing the lien, for the lien may be in full'force and the landlord have-no right to an attachment at all.” That case then proceeds to hold, in effect, that the crops are attachable property at the suit of the landlord, notwithstanding he is not enforcing his lien as such. But it may be suggested -that the section of the-statute which provides for the landlord’s lien, as such, likewise provides for its enforcement by attachment. That section has been amended since the decisions last referred to and, as we have seen that attachment was-not the remedy before the amendment, it is necessary to ascertain if that amendment has made any change — 245 — in respect to. the matter under discussion. The section as amended is as follows: “Sec. 6376. Every landlord shall have a lien upon the crops grown on the demised premises in any year, for the rent that shall accrue for such year, and such lien shall continue for eight months after such rent shall become due and payable, and no longer. When the demised premises or any portion thereof are used for the purpose of growing nursery stock, a lien shall exist , and continue on such stock until the same shall have been removed from the premises and sold, and such lien may be enforced by attachment in the manner hereinafter provided.” Does the clause regarding attachment refer to the lien on both crops and nursery stock? The section, it will be observed, is divided into two independent sentences. The first sentence was the complete section before amendment. The last sentence is the amendment. The first sentence has reference to the yearly production of the soil and could not have been held to. cover nursery stock. The second sentence provides, independently, for a “lien” on a nursery stock. The nursery lien can not be laid upon the crop, nor can the crop lien be laid upon the nursery stock. The nursery lien exists and continues until the stock is removed and sold. The crop lien only exists for the rent for the year of its production and continues but eight months without regard to removal and sale. It is thus manifest that the two liens are wholly distinct and are independent of each other, and that a reference to one can not include the other. When, therefore, it is provided by the last clause in the last sentence that “such lien may be enforced by attachment,” the lien meant is the nursery lien which has just been brought into existence, by name, in the words immediately preceding. There are expressions, made in the course of the opinions in Chamberlain v. Heard, 22 Mo. App. 416, — 246 — and in Hulett v. Stockwell, 27 Mo. App. 328, which would, perhaps, indicate a different view. But the point here discussed was not in judgment in either of those cases and was not discussed in the opinions. The result of our conclusion on this subject is that the lien and the attachment are things apart; that the landlord has two remedies by which he may proceed to the collection of his rent: One is by enforcement of his lien; see Price v. Roetzell, supra; and the other is by attachment as provided in the aforesaid section 6384, Revised Statutes, 1889. If he elects to proceed by attachment, he does so as an ordinary attaching creditor with no additional rights, in such action at least, by reason of the fact that his claim is for rent. From this conclusion it follows that whatever was hypothetically put' to the jury in the instructions of the court as to plaintiff’s right to a lien were more than he was entitled to and that he has no ground of complaint at the refusal of others offered. No other objections are offered which we., deem necessary to discuss and we therefore affirm the judgment. All concur.