Dunn v. Hart
| Decision Date | 09 June 1919 |
| Docket Number | 20718 |
| Citation | 120 Miss. 132,81 So. 795 |
| Court | Mississippi Supreme Court |
| Parties | DUNN v. HART ET AL |
LANDLORD AND TENANT. Attachment for rent. Claim of property. Burden of proof.
In an attachment for rent by a landlord, where a claimant files an affidavit of ownership of the attached property under Code 1906, sections 2868-2869 (Hemingway's Code, section 2366-
2367). The burden is upon such claimant to prove his ownership of the property involved, but having proven ownership, the claimant makes out a prima-facie case, and the burden then shifts to the landlord to prove that, notwithstanding the fact that the property was owned by the claimant, when he acquired it, it was and still is subject to a lien for rent in his, the landlord's favor.
APPEAL from the circuit court of Hinds County, HON. W. H. POTTER Judge.
Attachment for rent by H. B. Dunn against one McKeener, in which J. & B Hart filed a claimant issue. From a judgment for claimant plaintiff appeals.
The facts are fully stated in the opinion of the court.
Affirmed.
Sivley Rhodes, for appellant.
Appellant's theory of this case is that the sole and only issue in the lower court was as to the ownership of the property. As a matter of fact the trial court lost sight of the paramount issue to the jury. It is the further contention of the appellant that the burden of proof in this case was upon the claimants, John and Ben Hart, to establish by a preponderance of the evidence that they were the legal owners of the cotton. In the case of Wright v. Craig, 92 Miss. 218, which was a contest between a landlord and a claimant, the court held, that the real issue between those two parties was as to the ownership of the property; this case also construed section 2871 of the Code of 1906. Section 2869 of the Mississippi Code of 1906, provides that on the trial of the issue between the landlord and the claimant, the burden of proof to show ownership in the property shall be on the claimant. In the case at bar, not only the burden to show ownership, but the burden to show everything was cast upon the appellant, the landlord.
I wish to direct your attention briefly to the procedure followed in the trial of this case. The claimant assumed the initiative and presented first all the necessary evidence to show that they were the owners of the property attached; in other words they assumed the burden of proof. The appellant, the landlord, H. B. Dunn, then presented his evidence by way of defense. To cap the climax the court then came in and changed the entire procedure in the instructions, by shifting the burden from the shoulders of the claimant and placing it throughout the whole case upon the landlord. That was the natural result of this--to materially hurt and effect the cause of the landlord before the jury. In the trial of the case, the landlord had merely assumed a defensive attitude, because the claimant had assumed the burden and was prosecuting his claim and the landlord was merely defending the claim interposed. The court through the instructions charged the jury that the burden of proof in the case to show everything was upon the landlord, and in as much as the landlord was merely defending the claim and was proceeding with the idea that he was not called upon to convince the jury by a preponderance of the evidence, naturally the jury formed the opinion that the landlord had presented the weakest case and that it was upon them to return a verdict for the claimant. I contend that the changing of tactics at the conclusion of this law suit, as shown by the record and as evidenced by the instructions, was a very serious error and one that was especially prejudicial to the cause of the landlord, the appellant, in view of the fact that this case presented a very close issue on the facts.
Let us now take up the instructions granted to the claimants and the one refused to the appellant, landlord. Take the claimant's instructions as a whole and they place the entire burden of the lawsuit upon the landlord. The instruction refused to the appellant, placed the burden upon the claimant to show that the cotton attached was not liable to attachment and that it was legally the property of the said claimants, Messrs. John and Ben Hart.
This instruction announces the law laid down in the Spears Case found in 71 Miss. Reports at page 774. The Spears case was a contest between an agricultural landlord and a claimant over some cotton raised on the landlord's premises by the tenant--the landlord attempting to fix his landlord's lien against said cotton for rent in arrear and the claimant claiming the property as his under the terms of a certain deed of trust. The Spears case fits the case at bar just like a glove. The following instruction was passed upon and approved in the Spears case." Instruction No. 4.--The court charges the jury that the burden of proof in this case is upon the plaintiff, W. E. Spears; he must show by the proof that he, and not someone else, at the time this suit was instituted, was entitled to recover the property in question." In other words the burden of proof was thrown upon the claimant and not upon the landlord. In the case at bar, the burden of proof was upon the landlord and not upon the claimant. I contend that the trial judge committed a serious error in refusing this said instruction No. 5 for the appellant landlord in the case at bar.
What does section 2869 of the Mississippi Code of 1906 mean when it says: "on the trial of the issue between the landlord and such claimant, the burden of proof to show ownership in the property shall be on the claimant?" Does this merely mean that all the claimant would have to show in a case like the one at bar is that he bought the property from the tenant and gave value for it? I contend that the claimant is called upon to go further. It being admitted by both sides in this case from the evidence that the cotton in question was grown upon the premises of the landlord, then I say that under the said section 2869 the claimant must allege and prove by a preponderance of the evidence that the cotton in question was not liable to be attached, because under section 2832 of the Code of 1906 the landlord is given a lien upon all agricultural products raised on the leased premises to secure the rent. The claimant is not the owner of the agricultural products raised on the leased premises, and cannot become the owner of said products, as long as the landlord has a lien on them for his unpaid rent, and it is up to the claimant to show that his ownership is superior to that of the landlord, and in order for him to show this, the burden is upon the claimant to prove that there is no landlord's lien against the cotton. In other words, the burden of proof is upon the claimant to show that the said cotton in question was not liable to be attached. The law of this state favors the landlord in regard to agricultural products raised on the leased premises being liable for the rent, and the cases in this state go so far as to hold, that the landlord has a right to follow the agricultural products raised upon his premises even into the hands of an innocent purchaser for value without notice and to subject them to the payment of his rent. In other words, the world is put on notice in this state that when you buy agricultural products like cotton, you buy it at the risk of having a landlord's lien against it, and it is up to the purchaser to make reasonable inquiries and find out if there are any liens against it. What does the proof show in this case? The claimants, John and Ben Hart bought this cotton merely upon the statement of the tenant that there were no claims against it. The appellant landlord attached the cotton--the tenant did not contest the attachment proceedings, so under the statute, the landlord was proceeding to sell the cotton to satisfy his lien, when the claimant stepped in and filed an affidavit and said: "We are the owners of the cotton." It then resolved itself into a contest between the claimant and the landlord as to the ownership. The court should bear in mind that as between the tenant and the landlord there was no issue, as the tenant by not contesting the attachment proceedings, admitted all that the landlord had charged, and that the first issue that was raised was the claim propounded by a third person the claimants, John and Ben Hart. The claimants raised the issue of ownership of the cotton, and under the said section 2869 of the Code, the burden was on them to prove that they were the owners of the property. They could not own the property under the law of this state if there was a landlord's lien against it and it was up to the claimants to show that this said cotton was not liable to a landlord's lien. The trial court did not require the claimants to shoulder this burden, and I contend that the court committed a very serious error in shifting this burden upon the landlord.
Conclusion. In the case at bar the trial judge permitted three different issues to go to the jury over the objection of the appellant landlord, and these different issues confused the jury and prejudiced the side of the appellant before the jury. The court permitted the jury to try the issue of the payment of the 1916 back rent, the issue of the payment of the 1917 advances, and the issue of the payment of 1917 rent all at the same time. The admission of all this immaterial testimony was prejudicial and very harmful to the cause of the appellant landlord and I contend that it was a very serious error and that this case should be reversed and remanded for a new trial on that ground alone. The trial court incorrectly announced the law governing this case, when he granted the three instructions...
To continue reading
Request your trial