Chamberlain v. Heard

• Decision Date: 24 May 1886
• Citation: 22 Mo.App. 416
• Parties: JASON CHAMBERLAIN, Appellant, v. JESSE F. HEARD ET AL., Respondents.
• Court: Missouri Court of Appeals

22 Mo.App. 416

JASON CHAMBERLAIN, Appellant,

v.JESSE F. HEARD ET AL., Respondents.

Kansas City Court of Appeals, Missouri.

May 24, 1886.

APPEAL from Pettis Circuit Court, HON. JOHN P. STROTHER, Judge.

Reversed and remanded.

Statement of case by the court.

This action was instituted on February 27, 1883, in the circuit court of Pettis county, on a promissory note given by the defendants for a certain farm leased to them by the plaintiff. The lease was made on February 28, 1882, and was to terminate on March 1, 1883. The note became due January 1, 1883. An order of attachment was issued the day on which the suit was begun, on the proper bond, and an affidavit of plaintiff, which averred, among other things, that the note was given for the rent of the farm; that it was due and unpaid; that eight months had not elapsed since the said rent became due, and that the plaintiff believed that unless an attachment issued he would lose his rent.

The writ of attachment was issued at once, and was levied immediately on a quantity of corn grown on the leased farm, during the term, and still there. The defendants filed a plea in abatement.

J. BRUMBACK, GEO. P. B. JACKSON, and H. C. SINNETT, for the appellant.

I. Plaintiff was entitled to an attachment on the ground that the rent was due and unpaid, when he made affidavit of that fact, and that he believed he would lose his rent, unless an attachment issued, and gave bond according to section 3091, Revised Statutes. Session Laws, 1877, p. 285, sect. 2; Rev. Stat., sect. 398; Bullene v. Smith, 73 Mo. 151; Taylor's Landlord & Tenant (4 Ed.) sects. 556-614; Evans v. Voght, 8 Mo. App. 576; Atkins v. Byrnes, 71 Ill. 326.

II. The court erred in allowing defendants to testify, over the objection of plaintiff, what intention they had. Dulaney v. Rogers, 64 Mo. 201.

III. The court erred in overruling motion for new trial and in giving judgment abating the attachment, because the finding was manifestly against the proofs. The evidence showed defendants were trying to dispose of the crop, which was the only security the plaintiff had, under section 3083, Revised Statutes.

IV. The instructions given for defendants confused and misled the jury. The plaintiff had a lien under the statute, and the law contemplates that there must remain on the premises property undisposed of sufficient to pay the rent.

V. The court erred in overruling the motion for judgment for plaintiff on the first plea in abatement, because the plea admitted all the facts entitling plaintiff to an attachment.

HEARD & HOFFMAN and WM. S. SHIRK, for the respondent.

I. The real and true ground of attachment in this case, as appears by the affidavit, is, removal and disposal of the crop. That the “rent was due and unpaid” was merely incidental.

II. It is not a sufficient ground for attachment, under section 3091, Revised Statutes, that a tenant failed to pay his rent on the day it became due. There must be some other act or conduct on the part of the tenant, specified in said section, which justifies his belief that unless an attachment issue, he will lose his rent, and he must prove these issues on the trial. The remedy is harsh, and will be strictly construed. Waples on Attach. 26, 108: Drake on Attach., sect. 408; Chenault v. Chapron, 5 Mo. 438; Temple v. Cochran, 13 Mo. 116. Distress for rent does not obtain in this state. Crocker v. Mann, 3 Mo. 472.

III. It was not error to allow defendants to testify what their intention was as to disposing of the property. The intent was one of the grounds of attachment in plaintiff's affidavit. Drake on Attach., sect. 409.

IV. This court will not disturb a verdict on the ground that it is against the weight of evidence. The instructions given for defendants neither misled the jury nor confused them. And there was no error in overruling plaintiff's motion for judgment. It was overruled, because defendants filed an amended plea in abatement. Meier v. Thomas, 5 Mo. App. 584.

HALL, J.

The fact that the rent was due and unpaid was clearly averred in the affidavit as ground of attachment.

The question in this case turns upon the construction of section 3091, Revised Statutes, which is as follows: “When any person, who shall be liable to pay rent, whether the same is due or not, or whether the same be payable in money or other things, if the rent be due within one year thereafter, intends to remove, or is removing, or has within thirty days removed his property from the leased premises (or shall in any manner dispose of such crop, or attempt to dispose of the same, so as to endanger, hinder, or delay the landlord from the collection of his rent, or when the rent is due and unpaid), the person to whom the rent is owing, may, before a justice of the peace, or the clerk of a court of record, having jurisdiction of actions by attachment in ordinary cases, of the county in which the premises lie, make affidavit of one or more of the facts aforesaid, and that he believes, unless an attachment issue, he will lose his rent, whereupon such officer shall issue an attachment for the rent * * *”

That section of the statute is to be construed in connection with section 3083, which provides as follows: “Every landlord shall have a lien upon the crops grown on the demised premises in any year, for the rent that shall accrue for that year, and such lien shall continue for eight months after such rent shall become due and payable, and no longer. When the demised premises, or any portion thereof are used for the purpose of growing nursery stock, a lien shall exist and continue on such stock until the same shall have been removed from the premises and sold, and such lien may be enforced by attachment in the manner hereinafter mentioned.”

By section 3083 the plaintiff, as the landlord of the leased premises, had a lien upon the crop grown thereon during the year of the lease for the rent, and the lien continued for eight months after the rent note became due. Haseltine v. Asherman, Sup. Ct. of Mo. not yet reported. By section 3091 the manner of enforcing such lien is provided. (Same case.)

In the case at bar, the property attached was property upon which the landlord's lien was, and what we shall say in this opinion, will be said with reference to that fact, without an intention to intimate at all whether we should or should not hold the same way had property been attached on which there was no such lien. We desire to be understood as simply deciding the question presented by the facts of this case.

Is a landlord authorized, by section 3091, to enforce his lien, established by section 3083, by reason of the fact that the rent is due and unpaid, without more?

By section 3091, the landlord must, in order to obtain an attachment, make an affidavit “that he believes, unless an attachment issue, he will lose his rent.” Is the fact thus stated by the landlord an issuable fact? The counsel for the defendants contend that the belief of the landlord is not an issuable fact, but that the fact that the landlord would have lost the rent unless the attachment had issued, is an issuable fact. Whether the rent be due or not, if it will be due in one year thereafter, the landlord is entitled to an attachment to enforce his lien, if the tenant “intends to remove, or is removing, or has, within thirty days, removed his property from the leased premises, or shall in any manner dispose of such crop, or attempt to dispose of the same, so as to endanger, hinder, or delay the landlord from the collection of his rent.” If the rent be due the landlord upon any one of such facts is entitled to an attachment, if by such fact he is hindered or delayed in the collection of his rent. It is not necessary that the landlord should be in danger of losing his rent. Still, in order for the landlord to obtain an attachment upon any of such facts, he would have to make the affidavit as to his belief mentioned above. The affidavit in such cases would not present an issuable fact. The belief of the landlord would not be an issuable fact. The danger of the landlord losing his rent would not be made an issuable fact by such affidavit, because the landlord would be entitled to an attachment if he should be only hindered or delayed in the collection of the rent.

Again, in order for a landlord to obtain an attachment upon the aforesaid facts, it is necessary for him to make an affidavit of one or more of such facts. The landlord must make affidavit of such facts, as they are set out in the statute. For instance, the first of said facts is, that the tenant “intends to remove * * * his property from the leased premises * * * so as to endanger, hinder, or delay the landlord from the collection of his rent.”

The tenant's intention to remove his property from the leased premises must be such as to “endanger, hinder, or delay the landlord from the collection of his rent,” and of that fact the landlord must make affidavit, when it is relied on by him as a ground of attachment. In such case the danger of the landlord losing his rent is put in issue by the landlord's affidavit, but by another part of such affidavit from...