Houston v. Smythe

• Decision Date: 21 January 1889
• Court: Mississippi Supreme Court
• Parties: S. S. HOUSTON ET AL. v. M. S. SMYTHE

5 So. 520

66 Miss. 118

S. S. HOUSTON ET AL. v. M. S. SMYTHE

Supreme Court of Mississippi

January 21, 1889

APPEAL from the circuit court of Leake county, HON. A. G. MAYERS Judge.

This was attachment for rent, and replevin by the tenant. The facts upon which the decision of the main question rests are stated in the opinion of the court. Both the declaration and avowry stated the value of the property to be as fixed by the return of the officer. On the trial, a witness for the defendant was permitted to testify to a greater value, and this being the only evidence introduced on that point, the court, over the objection of plaintiff, instructed the jury to assess the property at the valuation given by the witness which was accordingly done by the jury, and judgment was entered for the defendant in replevin, sustaining the attachment for rent.

Judgment reversed.

F. B Pratt, for appellant.

The evidence fully established the fact that there was a lease executed between Samuel Houston and S. S. Houston of the same date as the note which Mrs. Smythe held, and that said lease was never assigned. It was fully established, and no attempt was made to controvert it, that Mrs. Smythe was simply the assignee of the rent debt, and the verdict should, therefore, have been in favor of the plaintiff in replevin in accordance with the doctrine laid down in Gross v. Bartley, decided at this term, ante, p. 116.

D. C. Beauchamp, on same side.

The assignee of a rent note, or rent debt, cannot distrain, unless there is also an assignment of the lease or of the lands, or reversion thereof. Code, §§ 1302, 1324; Patty v. Bogle, 59 Miss. 493. As the statute expressly confers the right of distress on a certain class, all others are excluded. Privity of estate is essential to support distress. Taylor, Land. and Ten., § 868.

The verdict is far more than the value fixed by both the plaintiff and defendant. This is clearly erroneous, for where both sides by their pleadings agree Upon a certain valuation, this should control, and evidence to prove a different value is incompetent.

Calhoon & Green, for appellee.

The question here is, whether the assignee of the rent note in question can maintain attachment for rent against the agricultural products raised on the demised premises during the year for which the rent is due. Is the remedy by attachment, § 1302, code 1880, restricted to the lessor as a personal privilege? If this is restricted under this section, do not holders of the debt for rent secured by the lien, whether landlords or not, have the remedy by attachment to collect the debt? These questions involve a consideration of the nature of distress at common law and under our statutes.

At common law, distress being without the intervention of any court, was necessarily a personal privilege, and was necessarily in the name of the landlord. 2 Taylor L. & T., §§ 557, 567; Patty v. Bogle, 59 Miss. 492.

The remedy by distress was abolished in this state by statute in 1882. Hutch. Code 808. In 1822 a statute was passed similar in substance to § 1302, code 1880 (Hutch. Code 808), entitled "an act for the better securing the payment of rents, and preventing the fraudulent practices of tenants, and to regulate the practice of suing out and prosecuting actions of replevin." It will be seen that this statute, and those subsequently passed, and our present statute, do not proceed upon the relation of the landlord and tenant to secure the right, bat upon the fact of indebtedness for rent, and gives the remedy as an incident to the debt for rent, and merely specify lessors, because rent is ordinarily due to them.

The adjudications show that it was not a privilege but a suit. See Cornell v. Rulon, 3 How. (Miss.) 54; Peck v. Critchlow, 7 Ib. 247; Tifft v. Verden, 11 S. & M. 153; Parker v. Stovall, 31 Miss. 446; Marye v. Dyche, 42 Miss. 378. This last case virtually overrules Wright v. Link, 34 Miss. 266, and as this case has been succeeded by many others, and not referred to but passed by sub silentio, we can safely suppose it has had no effect upon the jurisprudence of this state in regard to rent.

In Briscoe v. McElween, 43 Miss. 565, substantially the same doctrine is announced as in Marye v. Dyche, supra.

Counsel cited and examined at length, besides the foregoing cases, Bloodworth v. Stevens, 51 Miss. 480; Tucker v. Whitehead, 58 Ib. 765; Arbuckle v. Nelms, 50 Ib. 556; McRovie v. White, 52 Ib. 408; Maxey v. White, 53 Ib. 80; Patty v. Bogle, 59 Ib. 492; Fitzgerald v. Fowlkes, 60 Ib. 276, and contended that they were incompatible with Wright v. Link, supra.

The present statute uses language showing that the remedy is not restricted to "lessors." See § 1311. "In arrear to the party causing such distress to be made," and "against the party in whose name or right such distress was taken." Similar language is used in §§ 1314 and 1316. Section 1326 gives the remedy to the "executors and administrators of any person unto whom any rent is or shall be due." Section 1342 provides for the tenant's giving security "to the person entitled to such rent."

A receiver may distrain. Wood L. & T. 32 and 33. Such right is derivative, and why not any other assignee distrain?

It has been held that a vendor, within the meaning of the vendor's lien, is the real vendor, not necessarily the grantor; so there can be a real lessor who is not the ostensible lessor. As Mrs. Smythe, in this case, held a past due trust-deed on the land, and the arrangement and agreement by which she took the note was consented to by all the parties, she was the real lessor, although Samuel Houston was the ostensible lessor.

OPINION

CAMPBELL, J.

The facts testified to by the Messrs. Houston are that Samuel Houston was indebted a considerable sum of money to Mrs. Smythe, which was secured by a deed of trust on land owned by him, and he determined to sell his land in different parcels, severally to his two sons and his son-in-law, and to get Mrs. Smythe to take the notes they would give for the purchase price of the land, in payment of the debt to her.

Mrs. S was applied to, and signified her willingness to take the notes of the purchasers of the land, to be drawn up by her attorney, Mr. Eads, after the manner of some he had prepared in a transaction she had with Mr. Wallace, and the Messrs. Houston were so informed, and referred by her to Mr. Eads. Thus referred, they applied to Mr. Eads, who promised to prepare the papers, and, subsequently did so, and handed them to Mrs. Smythe, who took them to the residence...