Epstein v. Farr

• Decision Date: 15 January 1917
• Docket Number: 18618
• Citation: 73 So. 572,112 Miss. 530
• Court: Mississippi Supreme Court
• Parties: EPSTEIN v. FARR

73 So. 572

112 Miss. 530

EPSTEIN v. FARR

No. 18618

Supreme Court of Mississippi

January 15, 1917

Division A

APPEAL from the chancery court of Pike county, HON. R. W. CUTRER Chancellor.

Bill by Louisa G. Epstein against Mrs. Ella D. Farr, administratrix. From a decree denying complainants prayer for relief, she appeals.

The facts are fully stated in the opinion of the court.

Reversed.

E. Q Williams and J. J. Cassidy, for appellant.

Is the language of the statute broad enough to sustain appellant's position? The language of the statute is very broad. It says no goods or chattels and etc., shall be taken by virtue of any writ of execution or other process whatever for the stock of goods was sold by the administratrix under an order of the chancery court and taken by the purchaser in pursuance of the chancery court. This was a taking under "process" as the word "process" is defined in 32 Cyc. 419, and notes page 422. The goods having thus been taken, it is the duty of the administratrix to pay the rent, and if this authority is not sufficient, the statute further provides that the officer levying shall be required to pay the plaintiff the money paid for rent as well as the money due under process.

The administratrix in taking charge of the property and selling it under an order of the chancery court, levied within the meaning of that word, as also defined in 25 Cyc., page 206 cited 32 Mississippi, for a definition of this word is given on page 469 of the opinion of the court, and the administratrix having the money in her hands it now becomes her duty to pay the landlord, appellant here, in full.

While the precise question involved in this case does not seem to have been passed upon by this court we find that this statute has been, several times, under the court's review. In Marye v. Dyche, 42 Miss. 347, decided in 1869, it was held that prior to an attachment for rent the tenant could sell or encumber the personal property, and those with whom he dealt would acquire a lien prior to that of the landlord. In Stamps v. Gilman, 43 Miss. 456, decided in 1871, the last case was affirmed and practically the same question was presented in Shanks v. Greenville, 57 Miss. 168. These cases do not constitute the point now under consideration, but are cited in support of appellant's contention that the lien is clearly drawn and the rights of landlord and others definitely established and that is that the landlord is entitled to the payment of his rent before the property can be moved from the premises or out of its proceeds if sold under process and the only instance where the personal property would not be liable for rent, is where it has been sold or encumbered by the owner in a lawful manner. In support of the principal for which we are contending, we cite Paine v. Hotel Company, 60 Miss. 360; this was a case in which Paine made an assignment for the benefit of his creditors, the assignee of course took charge of the property and handled it under instructions of the court.

It was held that the landlord was entitled to his rent in preference to the claims of the general creditors. The doctrine announced in this case was affirmed in Paine v. Sykes, 72 Miss. 351. In the case in the 60th Mississippi the court speaking through Chief Justice CAMPBELL, we think correctly stated the law when he said: "The landlord has a right to cause goods of the tenant liable to be taken for rent to be seized and held therefor against all the world except a purchaser in good faith for a valuable consideration."

The principle announcement in the cases last quoted, declare what seems to us to have been the intention of the legislature and fully support appellant's right to be paid her rent in full in this case to the exclusion of the general creditors. As throwing some light on this question we note that the Federal courts in bankruptcy proceedings, recognized the right of the landlord in Mississippi to be paid his rent in preference to other creditors.

J. T. Hutchinson, for appellee.

The sole question presented by this record is,whether the lessor of a storehouse is entitled to have a prior lien fixed upon the proceeds of a stock of goods which had been kept in the house, but sold by the administratrix of the lessee, under an order of the chancery court, and removed from the store more than thirty days before any steps were taken to assert or establish a lien for unpaid rent, no effort having been made to seize the goods or to fix a lien upon them in any shape or form, but the goods were sold at public outcry as authorized by the order of the court and brought in by parties and remained in the storehouse in which they were stored for sometime after the sale of same to the purchaser at the administratrix sale.

Under Section 2851 of Code of 1906, it is contended by appellant that they have given them a lien on the goods stored in the storehouse for the rent in arrears and owing by the lessee the deceased A. S. Farr, and that the amount of their claim should be paid out of the proceeds of the sale by the administratrix in full for the reason that they have a lien given by this section of the code on goods stored in the store. You will notice from the reading of this section of the code that there is not even a suggestion to the landlord that he has a lien on goods stored in his house for rent of same, the landlord only has a lien on the goods sold by him to his tenant as supplies (such as horses, mules and farming implements), and products grown by the tenant...