Storthz v. Smith

• Citation: 161 S.W. 183,109 Ark. 552
• Parties: STORTHZ v. SMITH
• Decision Date: 27 October 1913
• Court: Supreme Court of Arkansas

161 S.W. 183

109 Ark. 552

STORTHZ v. SMITH

Supreme Court of Arkansas

October 27, 1913

Appeal from Faulkner Chancery Court; Jordan Sellers, Chancellor modified and affirmed.

Decree affirmed in part and modified in part.

W. T Tucker, for appellant.

1. Section 5032, Kirby's Digest, gives the landlord a lien upon the crop grown on the premises, etc. 146 S.W. 133. This covers all the crops grown. 95 Ark. 37; 35 Id. 231; 89 N.C. 137; 71 Miss. 482; 4 So. 442; 64 Mo.App. 351; 131 Iowa 62; 107 N.W. 1032; 51 Miss. 155. The landlord's lien is superior to that of mortgagee. 25 Ark. 417; 24 Id. 545, and cases supra.

2. The mortgage is void for uncertainty in description. 54 Ark. 92; 43 Id. 350.

R. W Robins, for appellee.

1. Gordon and the crop were liable only for the rent of the land rented by Gordon from Carr, or ten acres, at the agreed price. Kirby's Dig., § 5035; 146 S.W. 133.

2. The description in the mortgage is sufficiently definite. 54 Ark 92; 43 Ark. 350; 28 N.Y. 362; 37 Id. 593; Smith on Chat. Mortgages, 10; 57 Ark. 371; 51 Ark. 410.

OPINION

MCCULLOCH, C. J.

Appellant, L. Storthz, owned a farm in Faulkner County, Arkansas, and rented a portion of it to one Robert Carr to cultivate during the year 1911. Before the time passed to plant the crop, Carr died, and appellant agreed with the latter's widow that she should carry out the rental contract, the effect of the contract, as disclosed in the evidence being, to constitute a new rental contract between appellant and Mrs. Carr. Mrs. Carr subrented ten acres of the land to one Gordon, who raised a crop thereon, and mortgaged it, before maturity, to appellee, S. G. Smith, a merchant in Conway, Arkansas, to secure an account for supplies. Gordon left before the crop was gathered, and Mrs. Carr authorized appellant's agent to take possession of it for the purpose of gathering it to pay the rent.

Appellee Smith instituted this action in the chancery court of Faulkner County to foreclose his mortgage, making Gordon, Mrs. Carr, and appellant defendants; and he asked that a receiver be appointed by the court to take charge of the crop, and the chancellor, in vacation, made an order for the appointment of a receiver.

Appellant resisted this order on the ground that he was solvent and was therefore accountable for the crop, and also offered to make bond for the delivery of the crop according to the orders of the court.

Appellant claims that there were thirty-two acres of the land, and that he was to be paid $ 6 an acre for it, and the proof introduced on his part tends to establish that contention. The proof, however, adduced by appellee, which the court accepted as true, tends to establish the acreage of the land rented at only twenty acres, and that Gordon cultivated ten acres thereof. It also shows that only the ten acres cultivated by Gordon could be put in cultivation that year, the remainder being covered at planting time by overflow water. The chancellor found that appellant was only entitled to enforce a lien for the sum of $ 60, being $ 6 per acre on the ten acres of land on which was the Gordon crop, and that the balance of proceeds of the crops, which was sold under order of the court, should be paid over to appellee, Smith, on his mortgage debt. A decree to that effect was rendered, and all of the costs of the cause, including the fee of the receiver and other expenses of the receivership, were awarded against appellant.

It is insisted on behalf of appellant that the decree was erroneous in not awarding him the full amount of rent which he claimed; in other words, it is contended that a lien should be declared in his favor against the crop for rent on thirty-two acres of land at $ 6 per acre.

The testimony is sufficient, we think, to warrant the finding of the chancellor that there were only twenty acres of the land rented by appellant to Carr, and that only ten acres of this was cultivated by Gordon. The proof is not entirely satisfactory, but our conclusion is that it is sufficient to show that it was a sub-renting to Gordon, and that he only sub-rented the amount that he put into cultivation. This being true, he is only liable for the ten acres of land at $ 6 per acre under the statute of this State which declares that, "Any person sub-renting lands or tenements shall only be held responsible for the rent of such as are cultivated or occupied by him." Kirby's Digest, § 5035. The purpose of this statute is to limit the liability of a sub-tenant to the rent of...