Ex parte Barnes

Decision Date26 July 1888
Citation4 So. 769,84 Ala. 540
PartiesEX PARTE BARNES.
CourtAlabama Supreme Court

Original proceedings in mandamus.

Augustus Barnes, as administrator of the estate of J. B. Barnett deceased, applies for a writ of mandamus to the Honorable J. M. CARMICHAEL, presiding judge of the circuit court of Lee county, commanding him to set aside and vacate a certain order made by him in a cause pending in said circuit court.

A & R. B. Barnes, for petitioner.

Geo. P. Harrison, Jr., and John M. Chilton for respondent.

STONE C.J.

The act "to give to landlords of store-houses," etc "a lien on the goods of their tenants for rents," was approved February 23, 1883, (Sess. Acts 175; Code 1886, § 3069 et seq.) The most important inquiry in this case is whether that act is violative of article 10, § 1, of the constitution of 1875, which exempts from levy and sale for the payment of debts personal property of every resident of this state of the value of $1,000. The facts of this case, as shown in the petition and transcript, are that Lazarus was a merchant, engaged in business, and having a stock of drugs, medicines, and other merchandise in a store-house not his own, but the property of petitioner's intestate. Barnett, the decedent, was landlord, and Lazarus, the merchant, was his tenant. On October 31, 1884, Lazarus, the tenant, made out and swore to a claim of a part of his merchandise in store, valued at $1,000, which he selected and claimed as exempt. This claim he filed in the office of the judge of probate. Afterwards, on the same day, he made a general assignment of his property for the benefit of his creditors, reciting that he was indebted to Barnett for rent. Afterwards, still on the same day, the attachment in this case was sued out in the name of Barnett against Lazarus, and levied on the goods in the store-house, which Lazarus had claimed as exempt. This was a special or exceptional attachment sued out under §§ 3070-3072, Code 1886, issued on an affidavit which averred the amount due and to fall due, that it was for rent of the store-house, describing it as the store-house in which Lazarus had been doing business, and affirming that he, Lazarus, had made an assignment for the benefit of his creditors, without the consent of said Barnett. The attachment describes and rests on the affidavit in its substantive averments, with sufficient fullness to show its nature and the ground on which it was sued out. In other words, it shows that it was an exceptional attachment, sued out by a landlord against his tenant, for the recovery of rent for the store-house in which the latter had his merchandise, and had been conducting a mercantile business. The creation of a lien was not the object of the suit. The statute, if constitutional, confers that. The attachment was resorted to as a means of enforcing a lien the law had declared. Counsel have referred us to no case directly in point, and in our own investigation we have found none. Questions have arisen and been determined, in relation to the landlord's lien on crops grown on rented land, for unpaid rent, declared to be paramount to other liens. Such liens have been maintained against exemption claims. Many reasons may be and are given why this should be so. The land is a very important factor in the growth and production of the crops on which the lien is asserted. And accepting a lease with a knowledge that the crop to be grown is not to become the absolute property of the tenant, but to remain under the paramount lien for the rent, is the equivalent of an express agreement that it shall be so. It is a surrender of that much of the ownership. Thomp. Homest. & Ex. § 377; Tayl. Landl. & Ten. (7th Ed.) § 424 a; Davis v. Meyers, 41 Ga. 95; Harrell v. Fagan, 43 Ga. 339; Prince v. Nance, 7 S.C. 351; Thompson v. Mead, 67 Ill. 395. In the absence of statutory provision or contract giving such lien, the claim of exemptions will prevail over it. Mason v. O'Brien, 42 Miss. 420; Swope v. Ross, 29 Ark. 370. In the case we have in hand the statute declares the lien. Code 1886, § 3069. Taking a lease of the store-house, and placing merchandise in it under the lease, must be treated as the equivalent of a valid agreement giving a lien. In Knighton v. Curry, 62 Ala. 404, speaking of the effect of a contract which, under the law, carries with it a lien, this court said: "The lien created *** is not that of an execution, a mere legislative remedy; but the bond of the tax collector being a contract by which the law had previously declared liens should be created, such lien is a lien by contract, so far as all parties to the bond are concerned. County of Dallas v. Timberlake, 54 Ala. 403; Schuessler v. Dudley, 80 Ala. 547, 2 South. Rep. 526. See Tyler v. Jewett, 82 Ala. 93, 2 South. Rep. 905. If in this case there had been an agreement, part of the terms of the lease, by which a lien was secured on the merchandise for the payment of the rent,...

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19 cases
  • Ex parte Jackson
    • United States
    • Alabama Supreme Court
    • 19 Marzo 1925
    ... ... 431, 65 So. 788; Ex parte Bradshaw, ... 174 Ala. 243, 250, 57 So. 16; Ex parte Watters, 180 Ala. 523, ... 61 So. 904; First Nat. Bank v. Cheney, 120 Ala. 117, ... 23 So. 733; Ex parte Morgan, 30 Ala. 51; Ex parte Robbins, 29 ... Ala. 71; Ex parte Cole, 28 Ala. 50; Ex parte Barnes, 84 Ala ... 540, 4 So. 769; Ex parte Haralson & Co., 5 Ala. 543; Ex parte ... King, 27 Ala. 387; Etheridge v. Hall, 7 Port. 47 ... Illustrations of the rule are Reynolds v. Crook, 95 ... Ala. 570, 11 So. 412, where there was no party who could ... prosecute the appeal; In re State ex rel ... ...
  • Ex parte Alabama Power Co.
    • United States
    • Alabama Supreme Court
    • 3 Marzo 1967
    ...was a clear legal right, and an absence of any other adequate remedy, there has been resort to mandamus. The recent cases of Ex parte Barnes, 84 Ala. 540, 4 South. 769, and Reynolds v. Crook, 95 Ala. 570, 11 South. 412, are illustrative. * * * If an order or judgment or decree is made or re......
  • Woodward Iron Co. v. Dean
    • United States
    • Alabama Supreme Court
    • 5 Abril 1928
    ...Ala. 496, 103 So. 558; Armstrong v. O'Neal, 176 Ala. 611, 58 So. 268; Minchener v. Carroll, 135 Ala. 409, 413, 33 So. 168; Ex parte Barnes, 84 Ala. 540, 4 So. 769; Ex Haralson & Co., 75 Ala. 543. The petition for mandamus is denied. It is insisted that there is manifest error on inspection ......
  • Wilson v. Duncan
    • United States
    • Alabama Supreme Court
    • 15 Abril 1897
    ... ... on the statement filed, and the security as given for the ... In Ex ... parte Morgan, 30 Ala. 51, it was held, that in a suit ... commenced by a corporation, a bond for costs in the penal sum ... of $200, conditioned for the ... we refer to Ex parte Robbins, 29 Ala. 71; Ex parte Morgan, 30 ... Ala. 51; Ex parte Haralson, 75 Ala. 543; Ex parte Barnes, 84 ... Ala. 540, 4 So. 769; Reynolds v. Crook, 95 Ala. 570, ... 11 So. 412. In Ex parte Morgan, for instance, to which case ... reference has ... ...
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1 books & journal articles
  • THE ROLE OF "COMMERCIAL MORALITY" IN TRADE SECRET DOCTRINE.
    • United States
    • Notre Dame Law Review Vol. 96 No. 1, November 2020
    • 1 Noviembre 2020
    ...(discussing Franke). (80) Enter. Mfg. Co. v. Landers, Frary & Clark, 124 F. 923, 927 (C.C.D. Conn. 1903). See, e.g., Ex parte Barnes, 4 So. 769, 770 (Ala. 1888) ("Sound commercial morality forbids that all the advantages shall inure in one direction, while nothing hut losses are entaile......

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