Castleman v. Harris

ELLISON, J. This action is to recover the value of some corn sold by plaintiff’s sublessee to defendants. The trial court sustained a demurrer to the evidence and rendered judgment for defendants. The petition is in two counts. The first is under section 6384, Revised Statutes 1889, and [275] is based on the allegation that defendants purchased the com from the subtenant with knowledge that it was grown on plaintiff’s “demised premises.” The second count charges that plaintiff had pending a suit by attachment against his tenants for the rent due from them and that the corn in controversy was attached by the constable. That the cause finally proceeded to judgment sustaining the attachment and judgment on the merits. That defendants purchased the corn during the pendency of such action. There was no evidence tending to show that defendants had notice of plaintiff’s claim for rent when they purchased the corn. The evidence does not tend to show that defendants knew the corn was grown on plaintiff’s land or on any rented land. We decided in Toney v. G-oodley, 57 Mo. App. 235, that a landlord’s lien could not be enforced against a purchaser without notice. And that knowledge of the fact that the vendor tenant was not a land owner and lived on rented property, without knowledge that the property sold was grown on rented property, was not sufficient upon which to base a finding of knowledge on the pant of the purchaser within the terms of the case of Dawson v. Coffey, 48 Mo. App. 109. We therefore think the demurrer to the evidence on this count was properly sustained. There was likewise a failure of evidence as to the second count. There was no sufficient evidence that there had been an attachment levied. There was no offer of the attachment writ with the officer’s return. There was an offer of the .justice’s transcript of his docket, but if this could be considered evidence of the attachment, it does not identify the corn in dispute. The corn in question appears to have been grown on 20 acres of land while the levy mentioned in the [276] transcript was on 65 acres. Whether this included the 20 acres does not appear. Besides, it was not shown that the attachment was sustained. The transcript from the justice and the circuit court record was offered to show this but was rejected. The trans-script discloses that the attachment was abated before the justice. On appeal as appears from the circuit court record it was sustained. But the appeal was taken before a judgment was rendered on the merits. Indeed, it seems that by some means the circuit court not only sustained the attachment but proceeded to render judgment on the merits when that part of the case was yet with the justice and was never appealed from him. These conditions perhaps arose from the fact that only the plaintiff appeared in the circuit court. The record offered in evidence thus discloses on its face that the attachment was not sustained, since that was the judgment of the justice and no valid appeal was taken therefrom. The law being that on a trial of the plea in abatement if the finding be for defendant, the plaintiff, may appeal after a judgment had on the merits. Milling Co. v. Ramey, 57 Mo. App. 33; Crawford v. Armstrong, 58 Mo. App. 214; Houser v. Andersch, 61 Mo. App. 15; R. S. 1899, sec. 407. We have considered the point, urged at length by plaintiff, that the pendency of the suit before the justice was notice of the attachment and binds the defendants. But whatever may be said of the merit of the point, there has not been sufficient foundation made for its application here. Eor admitting there was evidence offered to establish that a suit was pending before a justice of the peace, there was nothing to show an attachment of the corn in question. And besides this, as we have just shown, the record offered shows the attachment was abated. And we hold that a mere suit for rent, without a charge upon property afterwards claimed to [277] be liable therefore, will not, of itself, deprive a party without notice from purchasing such property. We have found nothing in the records or transcripts offered which tend to show notice to defendants of plaintiff’s rights as a landlord. The judgment must be affirmed. All concur.