Arbuthnot v. Thatcher

• Decision Date: 20 April 1939
• Docket Number: 2 Div. 133.
• Parties: ARBUTHNOT v. THATCHER ET AL.
• Court: Alabama Supreme Court

188 So. 245

237 Ala. 593

ARBUTHNOT v. THATCHER ET AL.

2 Div. 133.

Supreme Court of Alabama

April 20, 1939

Appeal from Circuit Court, Perry County; John Miller, Judge.

Bill by Elizabeth B. Arbuthnot against Gray Thatcher (formerly doing business under the name and style of Chat'n Nibble) and Lucy Christian, to enforce a lien for rent and fix priority of landlord's lien over lien of a mortgage. From a decree sustaining a demurrer to the bill, complainant appeals.

Reversed and remanded.

J. W Arbuthnot, Jr., and Clifton C. Johnston, both of Marion, for appellant.

A. W Stewart, of Marion, and Pitts & Pitts, of Selma, for appellees.

BOULDIN Justice.

The appeal is from a decree sustaining demurrers to a bill in equity.

The bill was filed to enforce a lien for rent of a storehouse (Code, § 8814); and to adjust the priorities between the landlord's lien and the lien of a mortgagee acquired pending the tenancy.

The bill avers that from September 1, 1937, to April 1, 1938, the store building was occupied by the "tenant of complainant at a monthly rental of $35 per month payable monthly on the first day of each month." That during the time the tenant became indebted to complainant for rent in the sum of $245, had paid thereon $50, leaving the balance due and unpaid; that on termination of the lease the tenant delivered to the landlord the goods, furniture, etc., upon which the lien is claimed; that while the property was on the premises, some five weeks after the tenancy began, the tenant gave a mortgage thereon to respondent Lucy Christian, who claims a lien superior to that of complainant.

The theory of the demurrers is that the bill shows no continuous rental, but a new rental for each successive month. That the landlord's lien having priority over the mortgage can extend only to the rent accrued up to the date the mortgage was recorded; or, in any event, to cover the month during which complainant had actual notice of the mortgage; that if the tenancy was at will, the landlord could not let rents accumulate against the property thus destroying the mortgagee's security after notice thereof. The bill was silent as to actual notice; but the insistence is the bill should aver all the facts upon which priority is claimed, and is to be construed most strongly against the pleader. The bill does not aver a tenancy for a term fixed in advance for the period during which the rent accrued.

But it does aver a continuous tenancy upon a monthly rental basis. This is a tenancy at will, commonly called a tenancy from month to month. Such a tenancy is continuous until terminated by notice to quit. Harris v. Hill, 190 Ala. 589, 67 So. 284; Eddins v. Galloway Coal Co., 205 Ala. 361 87 So. 557; Code, § 8822 (Amended Gen.Acts 1932, Ex.Sess., p. 14); 35 C.J. 1105, § 303.

It has long been settled that the landlord's lien attaches upon goods and wares of the tenant enjoying the protection of the premises for the rent accruing for the full term of the lease. Nicrosi v. Roswald, 113 Ala. 592, 21 So. 338; Andrews Manufacturing Co. v. Porter, 112 Ala. 381, 20 So. 475; Ex Parte Barnes, 84 Ala. 540, 4 So. 769; Shapiro v. Thompson, 160 Ala. 363, 367, 49 So. 391; Scott v. Renfro, 106 Ala. 611, 14 So. 556.

We think clear under the averments of the bill the landlord's lien attached when the goods went upon the premises as security for the rent of the entire period of the tenancy from month to month.

It follows the mortgage given upon property then on the premises...