Hulett v. Stockwell

• Decision Date: 24 October 1887
• Parties: JOHN Q. HULETT ET AL., Appellants, v. C. W. STOCKWELL ET AL., Respondents.
• Court: Kansas Court of Appeals

27 Mo.App. 328

JOHN Q. HULETT ET AL., Appellants, v. C. W. STOCKWELL ET AL., Respondents.

Court of Appeals of Missouri, Kansas City.

October 24, 1887

APPEAL from Audrain Circuit Court, HON. ELIJAH ROBINSON, Judge.

Reversed and remanded.

Statement of case by the court.

This is an action to enforce a landlord's lien, with a prayer for a writ of injunction. The facts, as they appear from the pleadings and evidence, are, that, in 1884, the plaintiffs leased their farm to the defendant, Stockwell, for a term of years, taking from him promissory notes for the payment of the rent money. The lease was to terminate the first of March, 1887. The rent was paid up to the year 1886. For that year's rent the defendant gave two promissory notes, one for three hundred dollars, due September 1, 1886, with ten per cent. interest from maturity, the other for two hundred and seventy dollars, due March 1, 1886, with like interest. The last note had a credit of $133.25 endorsed on it, of date of March 22, 1886, and of ten dollars, dated March 26, 1886. Stockwell sub-let a part of the demised premises to the other defendants herein, who raised a crop thereon during the year 1886. Stockwell, it seems, was insolvent. He had removed from the demised premises the portion of the crop raised by him and the evidence tended to show that the sub-tenants had removed part of the crop so raised by them. Plaintiffs claimed, and so alleged in their petition, that the removal of this crop endangered the collection of the rent, and the enforcement of their landlord's lien thereon; that defendants were insolvent. They prayed judgment for the debt against Stockwell, and for enforcement of the lien against all the crop grown on the premises, and asked for an injunction against defendants to prevent the removal of the residue of the crop.

Stockwell made no defence. The other defendants answered, alleging that they had paid Stockwell the rent for the land sub-let to them, with the knowledge and consent of plaintiffs; and then alleged that said Stockwell, when his debt to plaintiffs became due, began removing his property from the premises " and was endangering, hindering, and delaying, by reason of such removal, the collection of said rent," and that plaintiffs failed to bring an attachment to prevent the same.

The circuit court granted a temporary restraining order; but on the final hearing dissolved the injunction, and dismissed the action as to the sub-tenants; and then gave judgment in favor of plaintiffs merely for the amount of the notes. From this judgment the plaintiffs have appealed.

FRY & MOSBY, for the appellants.

I. The court below held that, although plaintiffs had a lien upon the crops for the debt sued on, yet such lien could only be enforced by attachment. In this the court erred. Plaintiffs are entitled to a judgment, enforcing their lien, and neither a writ of attachment nor injunction are necessary to the enforcement of the lien. Or plaintiffs may have either a writ of attachment or an injunction as an aid to enforcing the same, if they have grounds for such writs. The lien is an incumbrance created by the statute, and may be enforced before the landlord is entitled to the possession, before the debt is due. Rev. Stat., sect. 3083; Sheble v Curdt, 56 Mo. 439; Knox v. Hunt, 18 Mo. 243. If the tenant intended to remove the crops from the premises so as to endanger the collection of the rents, the plaintiffs might seize the property by attachment, or stay and protect it by injunction, in aid of their action to enforce their lien. Sheble v. Curdt, 56 Mo. 440; Price v Roetzell, 56 Mo. 500. Enforcement of the lien by attachment is not exclusive. Sanders v. Ohlhausen, 51 Mo. 164; Hubbard v. Moss, 65 Mo. 652. " We do not think that the attachment was a remedy provided for enforcing the lien, for the lien may be in full force and the landlords have no right to an attachment at all." Then the enforcement of the landlord's lien by attachment is not the exclusive remedy, and the court erred in so holding.

II. This is not an action in equity, strictly speaking, but a proceeding to enforce plaintiff's lien as landlord under section 3083, Revised Statutes. Plaintiffs' debt was not due, and defendant's conduct in the way of removing the crops was not such as to satisfy plaintiffs that they could sustain an attachment; but plaintiffs had a lien and were entitled to have such lien enforced, and were entitled to have the crop stayed on the premises where grown, and protected from waste, etc., until plaintiffs' lien was fixed and enforced by a judgment. An injunction writ was the proper remedy under the circumstances of this case. By an injunction proceeding the crop is retained on the premises where grown, in the possession of the tenant. When attached, the crop is taken absolutely from the tenant and disposed of by forced sale, generally with loss to the tenant and to the gain of the landlord. Here the plaintiffs are entitled to have their lien enforced, but have not grounds sufficient to sustain an attachment, yet they were entitled to have the crops kept on the premises where grown and protected from waste until their lien was enforced and their debt satisfied out of the crop. Rev. Stat., sects. 3083, 3091, 3095; Price v. Roetzell, 56 Mo. 500; Hubbard v. Moss, 65 Mo. 651; Haseltine v. Ausherman, 87 Mo. 412; Chamberlain v. Heard, 22 Mo.App. 416; High on Injunction [2 Ed.] sect. 434, and cases cited; Rev. Stat., sects. 2703, 2722. The defendant was insolvent and plaintiffs could not sustain an attachment, but to have the crops protected and avoid an attachment proceeding, plaintiffs were entitled to enjoin. The tenant had no right to remove the crops, and plaintiffs could enjoin. Musser v. Brink, 80 Mo. 350; Town v. Bowers, 81 Mo. 491. Injunction will issue to prevent the invasion of a right secured by statute. Railroad v. Railroad, 69 Mo. 65.

III. The plaintiffs' lien extended to all the crops grown on the leased premises for the payment of this debt, whether grown by the tenant or his sub-tenants, and the lien is enforced in the same manner against the sub-tenants as against the tenant. Rev. Stat., sect. 3095. The court in its finding should have rendered a special judgment against all the defendants, enforcing the payment of the same out of all crops raised on the leased premises. Garroutte v. White, 92 Mo. 237; Haseltine v. Ausherman, 87 Mo. 410; Haughton v. Bauer, 30 N.W. (S. C. Ia.) 577.

IV. The court erred in refusing plaintiffs' instruction. Cunningham v. Snow, 82 Mo. 593; Davis v. Scripps, 2 Mo. 187; Harbison v. School District, 89 Mo. 187; Wilson v. Albert, 89 Mo. 545.

V. If the injunction writ was improperly issued or was not sustained, the court should have dissolved the injunction and given plaintiffs judgment, enforcing their lien against the crops grown on the premises. Hence, the finding of the court was erroneous.

GEORGE ROBERTSON, for the respondents.

I. Plaintiffs had a complete remedy by statute, and, therefore, could not resort to equity. Rev. Stat., sect. 3091; Chamberlain v. Heard, 22 Mo.App. 416. The existence of statutory relief for the injury complained of is itself sufficient cause for refusing an injunction. High on Injunctions [1 Ed.] sect. 82, p. 30. Although a court of equity may, sometimes, grant relief when there is an adequate remedy at law, yet, if the defendant pleads that remedy (as was done in this case), that will defeat the equitable relief. Blair v. Railroad, 89 Mo. 383.

II. Section 3083, Revised Statutes, 1879, creates the landlord's lien, and section 3091 provides the remedy for enforcing that lien. Where a new right is created by statute, and a remedy furnished, also, by statute for enforcing that right, the statutory remedy is exclusive. Sedgwick on the Construction of Statutory and Constitutional Law, Pomeroy's Notes [2 Ed.] pp. 341 to 345; note a, p. 341, and authorities cited.

III. This was a suit in equity, and in equity cases it is not the practice for the court to declare the law by instructions. Hence, the court did not err in refusing to...