Brunswick- Balke-Collender Co. v. Murphy

• Decision Date: 05 November 1906
• Citation: 89 Miss. 264,42 So. 288
• Court: Mississippi Supreme Court
• Parties: BRUNSWICK- BALKE-COLLENDER COMPANY v. HIRAM P. MURPHY, ET AL

42 So. 288

89 Miss. 264

BRUNSWICK- BALKE-COLLENDER COMPANY v. HIRAM P. MURPHY, ET AL

Supreme Court of Mississippi

November 5, 1906

November 1906

FROM the Circuit court of Warren county, HON. JOHN N. BUSH, Judge.

The Brunswick-Balke-Collender Company, a corporation, the appellant, was plaintiff in the court below; the Morley Shoe Company, the appellees, and one Murphy were defendants there. From a judgment in favor of the Morley Shoe Company the plaintiff appealed to the supreme court.

The suit was a replevin for personal property which the plaintiff had sold to defendant Murphy, and which the latter had placed upon premises leased by him from the Morley Shoe Company. The defendants, the Morley Shoe Company, claimed that the property was liable for rent due them by Murphy, and for storage charges. The facts were in substance these: Murphy purchased on credit from the Brunswick-Balke-Collender Company, the appellant, certain pool tables and appurtenances, and, to evidence the purchase price, executed to appellant several promissory notes, maturing monthly in a consecutive series, and secured the same by a chattel mortgage upon the property. The mortgage stipulated that on default in payment of any note all unpaid notes of the series should become due, and that appellant, in such event, would have the right to immediate and exclusive possession of the property for purposes of foreclosure. The mortgage was duly recorded. Murphy leased rooms in Vicksburg from the Morley Shoe Company, at a rental of $ 30 per month, and placed the property therein, where for a short while he conducted business. After paying several months' rent and two of the purchase- money notes, Murphy left for parts unknown without notice either to the mortgagee or his landlord failing to make provision for future rent of the rooms or for storage of the mortgaged property. The Morley Shoe Company in writing, promptly notified appellant of Murphy's departure, and that they would expect it to pay the monthly rent until the property was removed from the premises, and in addition, mailed monthly to appellant bills for rent of the premises; to all of which appellant made no reply. Subsequently, when appellant demanded the property, the Morley Shoe Company refused to deliver the same, demanding that three months' rent, due under their lease to Murphy, should be paid them. Appellant refused to pay anything and instituted this suit. Defendants having failed, to give bond, plaintiff did so and took possession of the property, and in due course foreclosed the mortgage, buying in the property for a sum less than the balance of the purchase money due. Plaintiff, the Brunswick-Balke-Collender Company, paid the rent from the beginning of the suit until the property was removed from the leased premises. On the trial in the court below the appellees, the Morley Shoe Company, were awarded the property unless $ 90 claimed for rent should be paid them by appellant.

Chapter 52, p. 44, Laws 1894, referred to in the opinion, provides that: "No goods or chattels, lying or being in or upon any messuage, lands or tenements, leased or rented for life, years, at will, or otherwise, shall, at any time, be liable to be taken by virtue of any writ of execution, or other process whatever, unless the party so taking the same shall, before the removal of the goods or chattels from such premises, pay or tender to the landlord or lessor thereof, all the unpaid rent for the said premises, whether the day of payment shall have come or not, provided it shall not amount to more than one year's rent; and the party suing out such execution or other process paying or tendering to such landlord or lessor the rent unpaid, not to exceed one year's rent, may proceed to execute his judgment or process; and the officer levying the same shall be empowered and required to levy and pay to the plaintiff as well the money so paid for rent, as the money due under the process."

Reversed and remanded.

Brunini & Hirsch, for appellant.

Appellees relied upon Laws 1894, ch. 52, in the court below, as showing their right as landlords to hold the mortgaged property for the $ 90 rent. This was error. Marye v. Dyche, 42 Miss. 347; Stamps v. Gillman, 43 Miss. 457; Newman v. Greenville Bank, 66 Miss. 323.

Although the decision in Marye v. Dyche is based on Code 1857, art. 288, the act of 1894 is the more accurately and explicitly drawn of the two statutes. The present statute, Laws 1894, ch. 52, was intended to affect only property of tenants, and not to include property of third persons found upon the leased premises; nor was it intended to affect the property of tenants upon which there is a mortgage operating as a paramount lien.

The statute does not require a third person, to pay to the landlord whatever rent the tenant may owe, before he may recover his property carried by the tenant upon the leased premises. Were such the case, it would be hazardous to sell property on credit, or have credit dealings with anyone.

Nor can the mere notification of appellant by appellees that they would hold it liable for the rent due by Murphy, and the silence of appellant, make it or its property liable to appellees. No relations of liability, contractual or otherwise, existed between appellant and appellee. Both were merely creditors of Murphy, appellant by reason of the recorded mortgage, and appellees because of the unpaid rent. And appellant's claim upon the property in question, its lien, was prior to any claim of appellee. 18 Am. & Eng. Ency. Law (2d ed.), 337. Appellees, having knowledge of...