Engleburg v. Tonkel

• Decision Date: 30 November 1925
• Docket Number: 25225
• Court: Mississippi Supreme Court
• Parties: ENGLEBURG v. TONKEL. [*]

106 So. 447

140 Miss. 513

ENGLEBURG v. TONKEL. ^[*]

No. 25225

Supreme Court of Mississippi

November 30, 1925

Division B

Suggestion of Error Overruled Jan. 11, 1926.

APPEAL from chancery court of Bolivar County, HON. S. I. OSBORN Special Chancellor.

Bill by Mrs. Fannie B. Tonkel against Harry Engleburg. Demurrer to bill overruled, and defendant appeals. Affirmed and remanded.

Decree affirmed, and cause remanded.

Clark, Roberts & Hallam, for appellant.

I. There is no equity on the face of the bill. Complainant attempted to substitute a suit in chancery for an attachment for rent, under the chapter of the code on Landlord and Tenant, and this could not be done. The allegation that the complainant was advised that she had a lien on the goods wares and merchandise of the defendant is a mere conclusion of the pleader. No facts are stated which show that she actually had such lien, and the statutes of the state, and decisions of this court, refute the allegation that she had a lien. Section 2330, Hemingway's Code, negatives the idea that a landlord has a lien on any property of the tenant, except the agricultural products of the leased premises.

It is true that a landlord has the right, under the statute to create a lien as against the effects of the tenant by having the effects seized under an attachment for rent; but this lien can be created only when there is an insufficiency of agricultural products to satisfy the rent, section 2342, Hemingway's Code, providing that the command of the writ shall be that the officer "forthwith seize and take the said agricultural products to an amount sufficient to satisfy the said debts, with interest, and costs; and if there be not a sufficiency of said products so to do, then that you distrain the other goods and chattels of the said tenant."

The decisions of this state are uniform that the landlord has no lien on the effects of the tenant other than agricultural products. Stamps v. Gilman, 43 Miss. 458; FitzGerald v. Fowlkes, 60 Miss. 270; Marye v. Dyche, 42 Miss. 347; Henry v. Davis, 60 Miss. 212; Patty v. Bogle, 59 Miss. 491.

The contention of the appellee in the court below was that this was a case of equitable cognizance because section 2349, Hemingway's Code, provides that the goods and chattels of the tenant lying upon the demised premises shall not be taken by virtue of any writ of execution, or other process, unless the party so taking the same shall pay to the landlord the unpaid rent for the premises, and that this statute has the effect to create a lien in favor of the landlord against the effects of the tenant, which lien is enforceable in equity. And to fortify her interpretation of this statute, the appellee cites and relies on Epstein v. Farr, 112 Miss. 530, 73 So. 572. This case, however, does not so construe the statute.

That section 2851, Code 1906, section 2349, Hemingway's Code, does not give to the landlord the lien contended for, is also expressly held in White v. Miazza-Woods Const. Co., 122 Miss. 213, 84 So. 181. See also Shuler v. Grunewald Co., 113 Miss. 763, 74 So. 659.

If the landlord had a lien on the goods and chattels of the tenant other than the agricultural products, there could be no bona-fide purchaser of the goods and chattels on the leased premises so long as the rent remained unpaid, for the purchaser would take the goods and chattels charged with the lien, and subject to it. But this court has held that a purchaser of goods and chattels from a tenant on leased premises takes title free from the claim of the landlord for rent. White v. Miazza-Woods Const. Co., and Stamps v. Gilman, supra.

Of course, if the complainant had no landlord's lien it would have been improper for a receiver to be appointed to take charge of the appellant's property.

II. The bill states no facts showing right to relief. This bill in this case states no facts which show even a legal right. As stated above, it fails to allege that the defendant is the owner of any goods, wares or merchandise on the leased premises, or removed therefrom within thirty days. It fails to state the commencement or termination of the term. It fails to state the amount of the investment on which the tenant was to pay six per cent per annum net. It fails to allege that at the time of the filing of the bill the defendant was still in possession of the building for which the complainant seeks to recover rent, or that he was in possession of it at any time since the institution of the action at law. It expressly negatives the idea that any rent is due by defendant.

Even under the statute authorizing an attachment for rent it is necessary for the party entitled thereto to make complaint on oath "averring the facts which entitle the party seeking it to the remedy," as provided by section 2337, Hemingway's Code.

III. The remedy at law is full, adequate and complete. By a stretch of the imagination, it might be said that the original bill in this case shows a naked, legal right to enforce which an action at law for the rents is maintainable. Or, upon proper affidavit, the complainant could sue out an attachment for rent under the chapter on Landlord and Tenant. By this summary remedy the defendant's goods and effects could be seized and sold for the purpose of paying the amount of the rent due, if any. The statutes on attachment for rent were enacted to meet just such cases as this.

A receiver, even on proper application, will never be appointed "as a substitute for an attachment at law, or solely upon a ground which would justify such attachment." 34 Cyc. 25; Pearce v. Jennings, 10 So. 511; Uhl. v. Dillon (Md.), 69 Am. Dec. 172.

The only allegations of the bill which seek to justify the right to the appointment of a receiver to take charge of the property are those which allege that the complainant has cause to believe that divers judgments will be recovered against the defendant, and that the defendant's goods will be sold under executions on said judgments, and she will be deprived of her rights. But in her defense along these lines the very statute (section 2349, Hemingway's Coda) on which she relies to show that she has a lien on the defendant's goods on the demised premises, rises up as an impregnable bulwark. It provides that the goods shall not be taken under such writs of execution unless the year's rent be first paid.

Shands, Elmore & Causey and Lucy Somerville, for appellee.

I. The action of the court below in overruling the demurrer was proper. The bill is an application for a receiver pending the adjudication of the rent claimed to be due by Mrs. Tonkel, appellee herein. Appellant says that we should have filed an attachment instead of an application for a receiver. The law in Mississippi is that an attachment or distress may be sued out. (Section 2336, Hemingway's Code). The statute nowhere says that an attachment or distress shall be sued out. Consequently, we maintain that the statutory remedy is not exclusive.

We have no criticism to make of the law announced in the authorities cited by appellant. These authorities state the law as it is in Mississippi, but we do not think they state the law as applied to this case, and even if they do, the points are not material to a determination of this appeal. We believe, as we have stated above, that the statutory remedy for the collection of rents is not exclusive; that the appellee had the choice of the forum in which to file a suit and of the remedy which she chose to invoke in her aid. Atkinson v. Felder, 78 Miss. 83, 29 So. 767.

The bill herein upon its face alleges facts sufficient to entitle complainant to the appointment of a receiver. Under section 159, Mississippi Constitution, the chancery court is given full jurisdiction "in all matters in equity." The appointment of receivers is a matter within the exclusive jurisdiction of equity, Pomeroy, section 171, and, therefore, we respectfully submit that the court below ruled correctly in overruling the demurrer filed to complainant's bill.

II. The action of the court below in overruling the demurrer to the bill of complaint is not reversible error.

The bill of complaint makes a showing of equity jurisdiction so that the court was justified in holding that the case was properly filed in the chancery court, but regardless of whether the bill stated a case in equity or not the action of the court in overruling the demurrer is not reversible error, because of section 147 of the Constitution.

The court has repeatedly construed this section of the Constitution. The first case coming before the court after the adoption of the Constitution of 1890, in which this section was invoked, is Cazeneuve v. Curell, 70 Miss. 521, 13 So. 32. This is the leading case on this question and it meets all arguments that may be advanced. See also Day v. Hartman, 74 Miss. 489, 21 So. 302; Iron v. Cole, 78 Miss. 132, 28 So. 803; Hancock v. Dodge, 85 Miss. 228, 37 So. 711; Woodville v. Jenks, 94 Miss. 210, 48 So. 620; Grenada Lumber Co. v. State, 54 So. 8; Miller v. State, 114 Miss. 713, 75 So. 549.

Wherefore, in view of the fact that the bill, as filed, states a case for equity jurisdiction, and in view of the provisions of our Constitution that the supreme court shall not reverse any case because the case is of common law and not equity cognizance, we respectfully submit that the action of the lower court should be affirmed.

Clark, Roberts & Hallam, in reply for appellant.

In her brief, the appellee urges that, as equity alone has jurisdiction looking to the appointment of a receiver, and as section 147 of the Constitution of 1890 prohibits the supreme court from reversing a decree of a chancery court on the ground of want of jurisdiction to render the decree, from any error or...