Bowles' Ex'r v. Jones

• Decision Date: 02 October 1906
• Citation: 96 S.W. 1121,123 Ky. 395
• Parties: BOWLES' EX'R v. JONES ET AL.
• Court: Kentucky Court of Appeals

96 S.W. 1121

123 Ky. 395

BOWLES' EX'R v. JONES ET AL.

Court of Appeals of Kentucky.

October 2, 1906

Appeal from Circuit Court, Christian County.

"To be officially reported."

Suit by the executor of B. W. Bowles against Robert S. Jones and others; and from a judgment in favor of plaintiff, granting insufficient relief, he appeals. Reversed.

C. H Bush, and F. L. Wilkinson, for appellant.

G Clifton Long and R. W. Harrison, for appellees Jones and others. Frank Rives, for appellee H. C. McGee. J. T. Hanbery for appellee B. J. Wall.

CARROLL C.

On October 27, 1902, Robert S. Jones executed to J. W. Bowles his landlord, a rent note for $450, due on or before January 1, 1904, for the rent of a farm for the year 1903. In September, 1903, Jones entered into a contract with the executor of Bowles to rent the farm for the year 1904, and as a part of this contract he agreed "to mortgage the live stock and implements and the present crop of tobacco to secure the rental for the present year in addition to the rent for next year." On February 3, 1904, Jones executed a mortgage to appellee, the Giant Insurance Company, on the tobacco raised on the rented farm in 1903 to secure a note for $165 due the insurance company. This mortgage recites "that the said first party (Jones) hereby expressly warrants his title in and to the same against the claim of all persons whatever except $450 rent claim on tobacco." The 1903 rent was due on January 1, 1904, but the landlord did not take any steps to enforce his landlord's lien on the tobacco raised in 1903 by Jones on the rented premises within the time permitted by the statute, and it conceded that the landlord has no statutory lien on the tobacco. In June, 1904, and before all of the 1903 tobacco crop was sold, the appellees Wall Bros. and McGee obtained attachments and had them levied on the tobacco. Afterward, the appellant landlord, brought this suit in equity against the tenant, the attaching creditors, and the insurance company, setting up that he had a lien on the tobacco and on the proceeds of that part of it which had been sold, and asked that his lien be adjusted priorly over the mortgage of the insurance company and the liens of the attaching creditors. The insurance company and the attaching creditors denied that the landlord had a superior lien, and asserted by appropriate pleadings their claims and liens. Pending the litigation, the tobacco was all sold and the proceeds paid to the court receiver. On a hearing of the case, the court adjudged the landlord a lien on the proceeds as against the tenant, but held his lien to be inferior to the liens of the insurance company and the attaching creditors--giving to the insurance company priority over the attaching creditors, and directing the receiver to pay the claims in the order mentioned, including the costs of McGee and Wall Bros., which costs...