Campbell v. Farmers' Bank of Boyle

• Decision Date: 30 January 1922
• Docket Number: 22336
• Citation: 90 So. 436,127 Miss. 668
• Parties: CAMPBELL v. FARMERS' BANK OF BOYLE
• Court: Mississippi Supreme Court

90 So. 436

127 Miss. 668

CAMPBELL v. FARMERS' BANK OF BOYLE

No. 22336

Supreme Court of Mississippi

January 30, 1922

1. PARTIES. In sublessee's suit against bank converting property under landlord's lien, nonjoinder of original landlord cannot be raised by demurrer.

Under section 723, Code 1906 (section 506, Hemingway's Code) the nonjoinder of the original landlord in a suit by a sublessee against a bank for converting property upon which a landlord's lien exists cannot be raised by demurrer, the right of the original landlord being dependent upon contract but must be raised by plea setting up by proper averment the necessity of such joinder.

2. LANDLORD AND TENANT. Surety on forthcoming bond held proper defendant in suit by landlord having lien for conversion.

Where a bank replevies warehouse receipts and, to get immediate possession, gives bond with a surety for the forthcoming of the property replevied, upon which a third person has a landlord's lien, such surety is a proper defendant in a suit by the landlord against the bank for conversion, and it is error to sustain a demurrer setting up such an alleged misjoinder.

3. LANDLORD AND TENANT. Landlord's bill against bank for converting goods held to state cause of action.

A bill by a landlord against a bank for converting cotton upon which there was a landlord's lien, which states that the complainant was the landlord of a named tenant and that said tenant took the cotton upon which the lien existed and placed it in a warehouse, taking warehouse receipts therefor, and that the bank replevied the warehouse receipts, and after securing said warehouse receipts sold said cotton and converted it to its own use, and that demand had been made on the bank for said cotton or funds, which demand was refused by the bank, and that complainant does not know the amount for which the cotton sold and asking for judgment, is good against demurrer.

4. LANDLORD AND TENANT. Landlord held not estopped from claiming lien nor to have waived same.

An allegation in a landlord's bill to recover from a bank for conversion of the property upon which the lien exists that the tenant worked the land and gathered therefrom seven bales of cotton, ginned and stored the same in a compress taking a warehouse receipt therefor and that thereafter the bank filed a suit in replevin for such receipts and obtained possession thereof and converted the cotton, does not show that the tenant was the agent of the landlord under the uniform warehouse receipt law (Laws, 1920, chapter 218 sections 40 and 41; Hemingway's Code, Supp. 1921, chapter 186A, sections 7957n1 and 7957o1), so as to estop the landlord from claiming his lien, nor to constitute a waiver of such lien.

HON. G. EDW. WILLIAMS, Chancellor.

APPEAL from chancery court of Bolivar county, HON. G. EDW. WILLIAMS, Chancellor.

Bill by W. R. Campbell against the Farmers' Bank of Boyle. A demurrer to the complaint was sustained, and plaintiff appeals. Reversed and remanded.

Judgment reversed and cause remanded.

Shands, Elmore & Causey, R. E. Jackson and Geo. L. Teat, for appellant.

Roberts & Hallam and E. H. Green, for appellee.

OPINION

ETHRIDGE, J.

The appellant was complainant below and filed a bill against the Farmers' Bank of Boyle, a banking corporation, E. H. Green, and R. D. Maxey, alleging that on or about the 13th day of December, 1919, one L. L. Box, being a leaseholder in possession of certain property described in the bill by virtue of a leasehold term of one year and the legal possession of said lands, subleased the same to the complainant for one year, a copy of said lease being attached to the bill; that on the day of January, 1920, complainant entered into a sharecropper's contract with the defendant Maxey, whereby Maxey was to work, cultivate, and farm said lands on shares for said year 1920, that is to say, Maxey would put his labor in managing and operating the farm and complainant would furnish the land, seed, stock, and implements, and at the end of the year they would divide equally between them the produce grown by said Maxey upon the lands; that Maxey entered upon and worked said land and gathered therefrom seven bales of cotton, ginned and stored the same in the Bolivar compress at Cleveland, Miss., taking the warehouse receipt of said compress therefor; that thereafter the Farmers' Bank of Boyle on December 3, 1920, filed a replevin suit in the circuit court and replevined said warehouse receipts from said Maxey, filing a replevin bond in said suit, with E. H. Green as surety thereon, said bond being for double the amount of the value of the seven bales of cotton, a copy of said bond being filed with the bill as an exhibit thereto; complainant averred that after filing said bond and suit and getting possession of said compress receipts the defendant bank sold said cotton and applied the proceeds of all of the cotton to the payment of the note owed by said Maxey to said bank. A copy of the affidavit of replevin, writ, and declaration and the note with the officer's return on the writ were filed with the bill and made exhibits thereto. It is further alleged that demand had been made upon said defendants for complainant's one-half of the proceeds of said sale of cotton, and that defendants had failed and refused to pay any part of the sum and still refused so to do; that complainant has no adequate remedy in a court of law and does not know just what amount is due him, as he is not advised as to what the cotton brought, but that defendants are indebted to him for one-half the proceeds of said sale; that he was the landlord for said year of said Maxey, and prayed for an accounting as to the proceeds of the sale of said cotton, and for a decree against all of the defendants for the amount of one-half of the proceeds of said sale, and for general relief.

The affidavit by the Farmers' Bank of Boyle in replevin valued each bale of cotton at one hundred dollars, and alleged that the said warehouse receipts, the...