Crider v. McIntyre

• Decision Date: 06 June 1929
• Docket Number: (No. 817.)
• Citation: 20 S.W.2d 242
• Parties: CRIDER v. McINTYRE et al.
• Court: Texas Court of Appeals

20 S.W.2d 242

CRIDER v. McINTYRE et al.

(No. 817.)

Court of Civil Appeals of Texas. Waco.

June 6, 1929.

Rehearing Denied October 3, 1929.

Appeal from Limestone County Court; H. F. Kirby, Judge.

Suit by A. B. Crider against John McIntyre and another. Judgment for plaintiff for part of relief claimed, and plaintiff appeals. Reversed and rendered in part, and affirmed in part.

Rennolds & Rennolds, of Mexia, for appellant.

W. W. Mason, of Mexia, and L. W. Shepperd, of Groesbeck, for appellees.

BARCUS, J.

This is an appeal from a judgment entered by the trial court on an agreed state of facts. Appellant, as owner of 37 acres of land, rented same to appellee John McIntyre for 1928 for money rent. In September, 1928, McIntyre was indebted to appellant in the sum of $257 for rent and advances, and he filed this suit, seeking to foreclose his landlord's lien against McIntyre, and for judgment against appellee Frank Oliver by reason of his having converted the tenant's cotton. On August 31, 1928, appellee Frank Oliver filed suit against McIntyre on a note which he held against him, and which was secured by a chattel mortgage on the cotton raised on appellant's land, seeking a foreclosure of said chattel mortgage, and at the same time had issued a writ of attachment, and the officer by virtue thereof levied upon the cotton raised by McIntyre on appellant's farm, and thereafter by order of the court sold same for $322.78, being the full value thereof, and paid said money to appellee Frank Oliver.

The trial court rendered judgment for appellant against McIntyre for $257, with interest at 6 per cent. from January 24, 1929, and costs of court, and foreclosed appellant's landlord's lien on the cotton. The trial court refused to give appellant judgment against appellee Frank Oliver, on the theory that he had not converted said cotton. Appellant prosecutes this appeal from so much of said judgment as denied him a recovery against appellee Frank Oliver.

The sole question for determination, therefore, is whether the acts of appellee Oliver, in having the cotton on which appellant had a preference landlord's lien levied upon and removed from the premises, and sold and placed beyond the reach of appellant, amount in law to conversion. Appellee Oliver's theory is that he had a right to levy an attachment on, and have removed from the rented premises and have sold by the officer, the cotton, and still not be guilty of conversion, because it did not in any way affect the landlord's right to his preference lien or a foreclosure thereof, and because it did not appear that he individually purchased said cotton at the sheriff's sale. He cites in support thereof article 3797 of the Revised Statutes of 1925, which authorizes mortgaged property to be levied upon and sold, and he cites authorities under said statute which hold, in effect, that a party who has caused mortgaged property to be sold under an execution is not guilty of conversion, where it does not appear the mortgaged property has by reason of said sale been placed beyond the reach of the party holding the mortgage lien.

We do not think said statute, or the authorities cited by appellee, are applicable to or govern the sale under attachment or execution of crops raised by a tenant, in so far as they affect the preference lien given the landlord under article 5222 of the Revised Statutes of 1925 to secure him in rents and advances. Article 5223 provides that said lien shall last for 30 days after the property has been removed from the rented premises. Our courts have uniformly held that the landlord has a right to have said crops remain on the premises until the rents are paid. Our courts further hold that, where a creditor of a tenant has the tenant's crop levied upon and...