Nickelson v. Negley

Seevers, J. The petition states that the plaintiff leased certain premises to one Monroe, for one year from the fii*st day of March, 1884, and that said Monroe agreed to pay the rent in April, 1884, and on January 1, 1S85; that said Monroe l’aised on the leased premises 1,000 bushels of wheat, which he sold and delivered to the defendants in August and September, 1884, which they converted to their own use; that plaintiff had a landlord’s lien on said wheat, and in February, 1885, he commenced an action to enforce his lien, and sued out a landloi'd’s attachment, but the same was not levied on said wheat for the reason that the same could not be found. In March, 1885, he recovered a judgment against Monroe for the amount due under the lease. It is stated that defendants have sold said wheat, and the same is not in their possession. The relief asked is that plaintiff recover of the defendants to the extent or amount of the judgment against Monroe. This action was commenced on the first day of October, 1885. The defendants demurred to the petition on the ground that, at the time this [547] action was commenced, the plaintiff’s lien Had ceased to exist. It is provided by statute that a landlord has a lien upon all crops grown on the demised premises during the term, and which are not exempt from execution, “ but such lien shall not continue more than six months after the expiration of the term.” Code, § 2017. The term ended on the first day of March, 1885, and 'this action was not commenced until more than six months thereafter, and therefore it is contended that the lieu had ceased to exist, and that the plaintiff cannot recover. On the other hand, the plaintiff contends that,'when the defendants purchased the wheat in August and September, 1884, his lien did exist, and the defendants purchased subject thereto, and must now account to the plaintiff, for the reason that they have converted to their own use property on which he had a valid lien. It seems to us the plaintiff’s position cannot be sustained. The defendants did not become absolutely liable to the plaintiff when they purchased the wheat. It is true, they purchased snbject to the lien, and became liable to the plaintiff if an action was commenced to enforce it within the time provided by statute. If no such action wa3 commenced within that time, the lien cannot be enforced. But it is urged that an action was commenced within that time. The defendants, however, were not parties to such action. As to them, it has no force and effect, and was not in fact commenced. But it is contended that the statute provides that “ the lien may be effected by the commencement of an action within the period above prescribed, * * * in which action the landlord shall be entitled to a writ of attachment, * * *” Code, § 2018. Counsel for the appellant contend that, as the action was commenced against the tenant within the statutory period, the lien was “ effected,” for the reason that the statute so provides. The word “ effected ” certainly was not well chosen to express what clearly, it seems to us, must have [548] been the legislative thought. The meaning of the word as used in the statute, it seems to us, must be regarded the same as enforced; for it does not require an action to effectuate the lien. It exists for and during the statutory period, although no action is brought to enforce it. If, however, it is desired to enforce the lien, then an'action is required. Now, this'is precisely the object of this action, — that is, to enforce the lien; but, as it was not brought within the statutory period, the plaintiff cannot recover. The statute, in effect, is a limitation on the right of action. The demurrer was therefore correctly sustained. Aeeikmed.