Bain v. Brooks

Tabbell, J. : This case arises under the law for the encouragement of agriculture, approved February 18, 1867, and comes to us from the chancery court of Nankin county. _ The question is between the parties to the contract, the rights of third persons being no way involved. It appears that, in 1868, Brooks and Bain entered into a written agreement for the cultivation of a crop on the land of Brooks, and such terms were stipulated that the crop was to be equally divided between the parties, and it was further agreed that “the said Bain acknowledges a lien on all of his half of said crops in favor of the said Brooks for supplies, clothing, and all other indebtedness to him, the said Brooks, which has already or [545] may be contracted during said year.” By a verbal understanding, a crop was made in 1869 under the written contract of 1868. In January, 1870, the parties so far effected a settlement as to divide the cotton, and Bain executed to Brooks a writing, of which the following is a copy : “Due George W. Brooks nine hundred and twenty-eight dollars and twenty-five cents for cash and supplies furnished me. in 1869, this, the 19th of January, 1870.” This instrument was filed or enrolled in the proper office, January 20, 1870, and a writ of sequestration was issued on the twenty-fourth of the same month. The bill is brief, alleging advances and supplies to make the crop, the division of the cotton, and the indebtedness, referring to the due bill as evidence of the sum due, and of the lien. The defendant demurred to the bill, stating the following causes: 1st. Want of equity ; 2d. No contract in writing, such as would create a lien; 3d. The contract sued on is merely a promissory note, not reduced to writing until after the cotton sequestered had been cultivated ; 4th. The attempt of complainant is evasion, and his remedy is at law upon the note; 5th. In other respects, uncertain, informal and insufficient. The demurrer was overruled, and the defendant answered, making his answer a cross-bill, setting out the contract of 1868, and the verbal continuation of that contract in 1869 ; avers that at the time of the execution of the due bill mentioned, there were existing unsettled accounts between the parties, which were to be adjusted by arbitration, and the amount found due respondent was to be deducted from said due bill; avers there was due respondent on such unsettled accounts, to be credited upon said due bill, the sum of $387 50; avers that included in the due bill is the sum of $200 owed by respondent to one' C. GK Snead, and purchased of him by complainant with a view to an unfair advantage over respondent. The answer to thepross-bill asserts the due bill to have been given in completion of a prior verbal contract, omitted to be reduced to writing by accident only; states an account as an offset to the claim of [546] respondent; makes tbe written agreement to arbitrate an exbibit; insists upon a decree for a sale of tbe cotton for tbe payment of tbe due bill; and that tbe court shall not adjudicate tbe matters referred to arbitration. Tbe case was beard upon tbe pleadings, exhibits and proofs, and tbe final decree directed tbe sale of tbe cotton seized for tbe payment of tbe sum for which tbe due bill was given, and upon which this proceeding is based. From this decree an appeal was taken to this court, where a reversal is asked upon tbe following grounds: 1st. Because tbe demurrer to tbe bill was overruled ; 2d. Because tbe evidence taken and filed upon tbe issue made up by tbe pleadings was disregarded by tbe court; 8d. Tbe court erred in granting tbe final decree. It will be seen that we are called upon to determine whether, by tbe act referred to, a contract in writing is required to create the lien authorized by that statute. Pamphlet acts, 1867, p. 569. Tbe first section provides, “ that all debts * * * for advance of money, purchase of supplies, farming utensils, working stock, or other things necessary for tbe cultivation of a farm or plantation, shall constitute a prior lien upon tbe crop of cotton, corn and other produce of such farm or plantation, * * * also on tbe animals and implements employed or used in cultivating tbe same, which shall have been purchased with tbe money so advanced, or which shall have been furnished by such person, in favor of tbe person or persons so advancing or furnishing * * * from tbe time tbe contract or contracts therefor, or a synopsis of tbe same, shall be enrolled.” Section three enacts, “ that all contracts within tbe provision of this act, or a copy thereof, shall be filed in tbe office of tbe clerk of tbe circuit court of tbe county in which tbe farm or plantation is situated, and such clerk shall enroll tbe same in tbe order in which they are so filed, * * * in tbe following form, etc. A careful reading of this statute shows that its terms cannot be complied with except by a contract in writing. Tbe [547] “contract,” ora “ copy thereof, ” cannot be “filed,” and “enrolled” as prescribed, unless first reduced to writing. An analysis of this law leads to no other result. We have searched in vain for precedents under a similar enactment. There is in Georgia a statute, having the same object as the one under review, but that, in terms, requires the contract to be written. In Wyatt v. Turner, 37 Ga. 340, it was held, that ‘ ‘ a note given for advances was a simple promissory note, and failed to show any intention to create a lien on the crop; it was a.mere promise to pay so many dollars. This was not what the statute intended by the words, ‘ special contract in writing.’ This special contract may be embraced in a promissory note, but there must be written evidence of the contract in order to create such a lien.” This leads us to remark that the writing sued on, in the case at bar, is a promissory note, expressing the consideration, to wit, for “ cash and supplies furnished ” the maker in 1869, but it stipulates for no lien, and does not state the “ contract.” In 1868 these parties wisely reduced their contract for that year to writing, and it was prudently enrolled. In 1869 they agreed, verbally, upon the terms of the contract of the previous year, but accidentally omitted to reduce it to writing. ■ In January, 1870, they settled, and Bain acknowledged an indebtedness to Brooks for “cash and supplies furnished” him in 1869 of $928 25 ; but this admission of the amount due complainant, and of the character of the consideration, does not admit that there was a lien, nor agree to create one. Bain owes Brooks a debt, which in equity and good conscience he ought to pay, but payment cannot be enforced in the mode undertaken in the absence of a written contract creating the lien. The remedy in this case was undoubtedly by the ordinary process of attachment. However reluctantly we declare ,a rule in a given case which involves financial loss, it is because relief is beyond our power without a disregard of those general rules which must govern and control all courts of justice. As agreeable as it would be to us to protect the complain [548] ant in an honest and jnst claim, nevertheless, taking the view we do of the statute, the omission to reduce the contract of 1869 to writing was fatal, and is not cured by the verbal agreement, and the due bill on settlement. The adjudications of questions arising under the statute of 1867 are quite limited. The first was that of Marye v. Dyche et al., 42 Miss. 347, involving only the relative rights of the landlord to his rents, and the claim of the mórtagees under a mortgage and agricultural lien, wherein preference was given to the latter, the contract or mortgage having been duly enrolled prior to the attachment for rent. The second was Howard v. Simmons, 43 Miss. 88, the contest therein being between the merchants to whom the lien was given and a judgment creditor. The enrollment of the contract creating the lien was on the 25th September, 1867. The creditor claimed by virtue of a judgment long anterior to that time. It was held that, as to cotton matured and gathered prior to the enrollment of the contract for advances, the judgment lien was entitled to the preference. Thus, the question now under consideration is for the first time before the court of last resort. Of the opinion, that the statute of 1867 for the encouragement of agriculture requires the contract therein provided for to be in writing, it is unnecessary to discuss the remaining questions presented in the record. The result is, that the demurrer ought to have been sustained, whereupon the decree is reversed. We do not see how the complainant can protect himself by this proceeding; nevertheless, to afford him an opportunity, subject to the views of the statute of 1867 herein expressed, we will remand this case. Ordered accordingly.