O'Keefe v. McLemore

• Decision Date: 04 April 1921
• Docket Number: 21708
• Citation: 87 So. 655,125 Miss. 394
• Parties: O'KEEFE et al. v. MCLEMORE
• Court: Mississippi Supreme Court

87 So. 655

125 Miss. 394

O'KEEFE et al. v. MCLEMORE

No. 21708

Supreme Court of Mississippi

April 4, 1921

APPEAL from circuit court of Washington county, HON. S. F. DAVIS Judge.

Action by J. B. O'Keefe and others against G. B. McLemore. Judgment for defendant, and plaintiffs appeal. Reversed and remanded.

Judgment reversed and cause remanded.

R. B Campbell, for appellant.

The conveyance of the leased premises to C. R. Smith carried with it the rent for which the attachment, in this case was sued out; and the court erred in overruling the plaintiff's motion to exclude the evidence, and in refusing to direct a verdict for him, as requested in his Instruction No. 1.

The rule is well established that rent is an incident to the reversion, and that an unqualified grant of the reversion by the landlord passed to the grantee all rent to accrue. While the landlord may sever the rent from the reversion, the fact that the rent is evidenced by a note, or notes, will not, of itself, work a severance of the rent from the reversion. 18 Am. & Eng. Encyclopaedia of Law (2 Ed.), 280 & 285; 24 Cyclopedia of Law and Procedure, 1172; Watkins v Duvall, 69 Miss. 364; Bowdre Bros. & Co. v Sloan, 69 Miss. 369. And according to this last case, the fact that the rent note had been assigned to another made no difference.

When those cases were decided, the right to sue out an attachment was limited to the landlord, his executors or administrators, and the right was given to his executors or administrators only for rent in arrear, at the time of his death, or for rent to accrue during the year of his death, because, as to rent in arrear, his executors or administrators were his proper representatives of all choses in action, and as to rent accruing during the year of his death the statute made the same assets, and payable to his executors or administrators.

By section 2501 of the Annotated Code of 1892, the right to attach for the rent was given to the lessor, his executors, administrators, or assigns; and it was held in Coker v. Britt, 78 Miss. 583, that said section of that code secured the right to an assignee of the rent note or claim, using the following language:

"Prior to 1890, rent was an incident of the reversion, and the assignee of the rent note could not distrain for its payment, but by chapter 51, Acts of 1890, any assignee or holder of a claim for rent was given the remedy of distress before that time exercisable only by the lessor or the assignee of the reversion, and this remedy is also secured to the assignee of the rent claim by section 2501 Annotated Code."

That section of the code is the same as section 2838 of the Code of 1906, which governs the instant case; and, but for the rule that a statute, which has been construed, and afterwards adopted, is presumed to have been adopted as construed by the court. I would seriously contend that the court in the Coker case erred in holding that said section of the code was, in effect, the same as chapter 51 of the Acts of 1890, in that the word assigns as used in said section, embraced one who was assignee merely of the rent note or claim; but as I am debarred of any such contention by the rule mentioned, I take it to be the law, in consequence of that decision, that an assignee of the rent note or claim may sue out an attachment therefor, under the statute.

However, I am not debarred from contending that the court erred in that case if it meant to say that since 1890 rent was no longer an incident of the reversion.

As to that the language of the court was as follows: "Prior to 1890, rent was an incident of the reversion which, standing alone, would imply that after 1890, rent was no longer an incident to the reversion; but, when taken in connection with the language of the court that follows the words quoted, it is apparent that what the court meant was that under the circumstances as existed in that case, rent was an incident to the reversion."

In that case there had been no grant of the reversion, and the question as to the effect of a grant of the reversion did not arise, as the lessor of the rent claim continued to hold the reversion. The decision of the court was, that, under those circumstances an assignee of the rent claim was entitled to the remedy under the statute.

That was all that the court decided; otherwise, if the rent is no longer an incident to the reversion, it would be necessary in granting the reversion to specifically assign the rent, for if not an incident to the reversion, it would not pass with the land unless specially assigned; and, when a person, who had leased his lands and died, his heirs or devisees, as owners of the reversion, would not be entitled to the rent to accrue. Surely, the court, in what is said in the Coker case did not intend to bring about such results.

So, I contend that it is still the law of this state, as decided in Watkins v. Duvall, and Bowdre Bros. & Co. v. Sloan, ubi, supra, that an unqualified grant of the reversion, by a landlord, carries with it all rent to accrue, except where the rent has been previously assigned to another; and that where the rent has been previously assigned to another; and that where the rent claim is assigned, the assignment must be, not as collateral, but absolutely; that, if assigned as collateral for a loan, the landlord retains a general property right therein and the assignee only a qualified right, and that under those circumstances, the assignee of the rent claim, not having the entire interest, could not maintain an attachment for the rent, as he would not be an assignee within the meaning of the word, assigns, as used in the statute.

Except as against the rights of an assignee of a qualified interest in the rent note, a grant of the reversion by the landlord, would pass all of his interest in such rent to accrue.

If the assignment of the rent note be as collateral security for a loan, and the landlord should then grant the reversion to another, the landlord's general property right in said note, remaining in him, would pass to the grantee of the reversion; and if the landlord redeems such rent note, it would enure to the benefit of the grantee of the reversion.

Whether or not it be true, as I think it is, that in order to entitle an assignee of the rent note to sue out an attachment in this case was not sued out by an assignee of the rent note, within the meaning of the statute, and that brings me to the second point of this brief. (2) The appellee, having granted the reversion, seeks to maintain the attachment, in this case, as assignee of the rent note.

He cannot be assignee of himself; he cannot be both assignor and assignee of the same note. Having assigned the note as collateral security for a loan, and afterwards redeemed it, he stood exactly where he stood before he assigned it, and having granted the reversion, the rent note when redeemed by him enured to the benefit of the grantee of the reversion; but, whether that be true or not, having granted the reversion, and having redeemed the rent note, he lost any right to sue out an attachment, for the following reasons:

The statute gives the right to sue out an attachment, as heretofore stated, to the lessor, his executors, administrators or assigns, and, having granted the reversion, he could no longer sue out an attachment as lessor, or landlord.

His executors or administrators could not sue out an attachment because he is living, and consequently, he has no executors or administrators; and his assigns, have not sued out the attachment, in this case, as there are none; so that the appellee in sueing out this attachment, did not occupy the position or possess the character, either of lessor, executor, administrator or assigns, and they are the only classes of persons authorized by the statute to sue out an attachment for rent.

An attachment for rent is in the nature of final process, and the law authorizing it must be strictly pursued, and, when the court below so ruled as to permit the appellee to recover in this suit, as his own assigns, the governing statute was stretched far beyond its purpose and meaning; and consequently the court erred in overruling the plaintiff's motion to exclude the evidence, and in refusing to give his Instruction No. 1, directing the jury to return a verdict for him, which motion and instruction constitute the first and second assignment of error, which are applicable to the case as presented in the first paragraph of this brief.

(3) The third, fourth, and fifth assignments of error involve the rulings of the court below, in permitting the appellee to prove, and recover an attorney's fee of ten per cent. of the amount of the rent note, as provided for in the note; and I submit that the court erred in that regard.

The statute authorizes an attachment for rent, or advances made by the landlord or both; and the stipulation in the note for attorney's fees, if placed in the hands of an attorney for collection, did not provide that the attorney's fees should be a part of the rent; and, being no part of the rent or advances, the same should not have been allowed and, by erroneously permitting the same to be recovered, the judgment was increased to an amount several hundred dollars in excess of what it should have been, even if appellee were entitled to recover at all. Baxton v. Kenedy, 70 Miss. 865; 24 Cyclopedia of Laws, 1235.

For the reasons given, I respectfully submit that this case should be reversed, and dismissed in this court, without remanding same to the court below.

Bell & White, for appellee.

Did the conveyance of the leased premises by McLemore to Smith carry with it all rents and bar McLemore from sueing out the attachment and distress?

We submit that Smith's...