Fitzgerald v. Fowlkes

Campbell, C. J., delivered the opinion of the court. The ruling of the Circuit Court in this case involved the affirmation of the proposition that the remedy of the landlord by attachment for rent and supplies is the same with respect to the agricultural products of the leased premises, as it is as-to “ any goods and chattels liable for rent,” other than the-agricultural products aforesaid. This is contrary to the view of this court, lately announced in Henry v. Davis, ante, p. 212, in which it is held that the “ limitation of time or place is not applicable to the agricultural products of the leased premises, on which the landlord has a lien, with the right to enforce [274] it by seizure under attachment, wherever and whenever found.” The correctness of this view has been earnestly and vigorously questioned by counsel, and we have anxiously re-examined the subject and maturely considered it in all its details. Sect. 1301 of the Code of 1880 declares that the landlord shall have a lien on all the agricultural products of the leased premises, which shall be paramount to all other liens, claims, or demands of any kind, and this lien is given to secure the payment of rent and for supplies furnished. An attachment is given as a means to enforce this lien, as well as to enforce the claim of the landlord against goods of the tenant as to which there is no lien. As to goods and chattels, not agricultural products of the leased premises, the landlord has no lien, but only a right of seizure by attachment. As to them a lien is ■acquired by the levy of attachment, but the attachment is not •necessary to create a lien' on agricultural products. The statute causes that to spring from the facts of their existence, and the attachment is given as a convenient instrumentality for making the lien available. Sect. 1301 is an addition to the law of landlord and tenant, as it existed before the Code of 1880, and creates rights in favor of the landlord, and for convenience the machinery found provided by former Codes for enforcing payment of rent was adopted; but it is not to be assumed that the lien created in favor of the landlord on the agricultural products of his land, cultivated by means of supplies he advanced, is to be rendered so precarious a charge that it shall be lost by the lapse of a short time, or by the act of the tenant in removing the products from the leased premises and selling them to one who buys in good faith, without the knowledge of the lien of the landlord. A lien is a charge, and it is not of the nature of a lien that it should be destroyed by the act of another than him in whose favor it exists. It adheres until it is lost by what the law declares sufficient to ■extinguish it. It 'is foreign to all our notions of liens that they should be lost, except by something other than the act of the owner of the thing subject to the lien. If sect. 1301 [275] existed as an independent provision of law creating the lien for which it provides, and made no reference to attachment for rent, it would be- conceded that it furnished the measure of the rights of the landlord, and that any restriction of his rights found to arise from the remedy by attachment would not be claimed as an abridgment of his rights as conferred by the section giving him a lien. In other woi’ds, if the chapter on landlord and tenant, as found in the Codes of 1857 and 1871, and as contained in the Code of 1880, excluding sect. 1301, was all of that chapter, and sect. 1301 was a separate chapter, it would hardly be contended that the right of the landlord to a lien, paramount and dominant as it is declared to be, on all the agricultural products of the leased premises to secure him, was dwarfed and diminished by the restricted nature of the remedy by attachment provided for him in another chapter; but the right being created for his security, it would be held to extend the remedy co-extensive with the necessity for its enforcement, rather than that the limited and insufficient remedy should curtail the right. The greater should rule the lesser. The right expressly given, should not be made to yield to the inadequate machinery for its enforcement, and the right should be maintained whenever called in question. The right should shape the remedy and not e converso. The state in which the Legislature of 1880 found the law of landlord and tenant was this: In the Code of 1871 was “an act in relation to landlord and tenant,” which had been transferred from the Code of 1857, into whiSh it had been copied from former Codes. This act regulated the remedy of the landlord for rent, and was intended as a modification of the common law on that subject. It proceeded on the assumption of the existence of the common law, and changed it in several respects, so that the’ law of landlord and tenant here Avas held to be the common law as modified by the statute, and it was settled that, in this condition o'f the law, the landlord had no'lien on the goods of his tenant on the leased premises, but only a right to seize them [276] in the manner provided by the statute. The act of April 14th, 1876 (Phamphlet Act, p. 109), declared a lien in favor of the landlord on all the agricultural products of the leased premises for Ms rent and supplies advanced by him, and provided a means of enforcing the lien. So that, in 1880, when the subject came to be considered by the Legislature it was found that the landlord had a remedy for rent, as provided by the chapter on that subject in the Code of 1871, unrepealed, and had the lien declared in his favor by the act of 1876, cited above, with the remedy it provided for enforcing the lien against the agricultural product’s subject to it. The remedy by attachment might be employed against all goods and chattels liable to seizure for rent, and the remedy provided by the act of 1876 was for the enforcement of the lien it created, and was operative only against agricultural products. It was determined by the Legislature to preserve and enlarge the rights of the landlord as to the agricultural products of the leased premises, and to provide the remedy by attachment for enforcing his demands both against agricultural products and other goods and chattels liable for rent or supplies. Agricultural products are goods and chattels, but of a peculiar kind, and subject to a statutory charge enforceable by attachment. Other goods and chattels are not subject to a lien, but are liable to seizure by attachment, under certain conditions prescribed. These conditions are not applicable to agricultural products, because of the fact that the remedy must be made subservient to the right, and the preservation of the right requires that this class of goods and chattels made by statute, subject to an express charge, shall not escape it, by reason of the restricted nature of the remedy provided for other goods and chattels not subject to any charge, except as it may be imposed by the levy of attachment. The difference consists in the different character of the things against which the remedy is given. One class is subject to a charge enforceable by attachment as long as the charge remains. The other may be charged by attachment under- certain conditions. As to [277] them the remedy creates the right. As to the other the law creates the right, and the remedy is given to make it available, and the remedy is co-extensive with the right. We adhere to the view announced in Henry v. Davis. Judgment reversed and cause remanded for a new trial.