Marsalis v. Pitman

• Decision Date: 18 October 1887
• Citation: 5 S.W. 404
• Court: Texas Supreme Court
• Parties: MARSALIS and others v. PITMAN.

5 S.W. 404

MARSALIS and others v. PITMAN.

Supreme Court of Texas.

October 18, 1887.

Appeal from district court, Ellis county; ANSON RAMEY, Judge.

Cheek & Singleton, for appellants. Edwards & Fears, for appellee.

STAYTON, J.

The appellee leased to one Roach, for the period of eight months, beginning on January 1, 1885, a store-house in the town of Ennis, and for the house Roach agreed to pay a rental of $30 per month, which was to be paid monthly. Roach used the house until about January 20th, at which time he sold his stock of goods, then on the premises, to Marsalis & Co. and others of his creditors. Appellants and Roach each notified appellee of the sale, and that the house would be abandoned and vacated on the first day of February, and a tender of one month's rent was made, which Pitman refused to receive. On January 23, 1885, Pitman sued out a distress warrant, and caused it to be levied on goods bought by Marsalis & Co., sufficient to pay the rent of the house for the full term of eight months. The goods, at the time of seizure, were on the rented premises, and when they were seized appellant made claim under the statute, and filed the bond required. The house was vacated by Roach in accordance with the notice given to the lessor. After Roach vacated the house, Pitman rented it for a short period (from July 11th) to another person, at the same rental that Roach had agreed to pay, and in a judgment entered in the distress proceeding credit was given to Roach for the money received as rent by Pitman during that period of the eight months which the house was used by the second tenant. On the trial of this cause judgment was entered subjecting the property seized under the distress warrant to the payment of the judgment obtained by Pitman against Roach.

It is urged that Pitman had no lien for rent other than that due for the month of January, and that it was error to hold the property seized subject to the payment of all the rent due for the entire term of eight months, except as the claim had been satisfied by money received from the second tenant. Rev. St. 3107. The statute provides that "all persons leasing or renting lands or tenements, at will or for a term, shall have a preference lien upon the property of the tenant hereinafter indicated, for any rent that may become due," etc. Some difference of opinion arose as to whether the act of April 4, 1874, from which we have quoted, had application to the lease or renting of lands other than agricultural, as will be seen from an examination of the case of Rosenberg v. Shaper, 51 Tex. 137. In order to remove all question upon this point, the act of April 22, 1879, was doubtless passed. The first section of that act provides "that all persons leasing or renting any residence, or storehouse, or other building, shall have a preference lien upon all the property of the tenant in said residence or store-house or other building, for the payment of the rents due, and that may become due, and such lien shall continue and be in force so long as the tenant shall occupy the rented premises, and for one month thereafter," etc. Rev.St.3122a. The succeeding article declares that "the object of this and the preceding article being to extend the operation of such law so as to include and protect liens on residences and store-houses and other buildings occupied or used by tenants, and conferring on the owners thereof the same rights and privileges as are now conferred by law on other landlords." Rev.St.3122b. The landlord's lien exists by force of these statutes, and not simply by force of the levy of the process which the law provides to be used to enforce it, and attaches to any property owned by the tenant, and placed on the rented premises during the term, except as property may be relieved from this superior or preference lien by the terms of the act, or operation of laws exempting property from forced sale. How long, and to secure what debts, does the landlord's lien attach by force of the law? These inquiries, it seems to us, the statute itself answers. "Such lien shall continue and be in force so long as the tenant shall occupy the rented premises, and for one month thereafter," is the express declaration of the statute. The lien of the appellee had doubtless attached to the goods which Roach sold to the appellants. They were the property of Roach, placed by him on the rented premises which he was occupying under the terms of the lease at the time he sold to appellants, and he did not divest the lien by the fact of sale, for the only sale of goods, wares, or merchandise by a merchant, trader, or mechanic tenant,...