Murphey v. Brown

• Decision Date: 20 March 1909
• Docket Number: Civil 1075
• Parties: LIZZIE B. MURPHEY and WALTER E. MURPHEY, Plaintiffs and Appellants, v. JOSEPH BROWN, W. P. SIMS and B. FRIEDMAN, Defendants and Appellees
• Court: Arizona Supreme Court

100 P. 801

12 Ariz. 268

LIZZIE B. MURPHEY and WALTER E. MURPHEY, Plaintiffs and Appellants, v. JOSEPH BROWN, W. P. SIMS and B. FRIEDMAN, Defendants and Appellees

Civil No. 1075

Supreme Court of Arizona

March 20, 1909

APPEAL from a judgment of the District Court of the First Judicial District, in and for the County of Pima. John H. Campbell Judge. Reversed and remanded.

The facts are stated in the opinion.

S. L Kingan, and G. E. Tralles, for Appellants.

A landlord under the statutes of Arizona has a lien upon the chattels of his tenant for rent due and to become due.

The landlord's lien is conferred by virtue of the provisions of paragraph 2695, Revised Statutes of Arizona, 1901 "Every landlord shall have a lien upon all the property of his tenant not exempt by law, placed upon or used on the leased premises until his rent shall be paid, and such landlord, his agent or attorney, may seize, for rent, any personal property of his tenant that may be found on the premises or in the county where such tenant shall reside, but no property of any other person, although the same may be found on the premises, shall be liable for seizure for rent due from such tenant, and in case of the failure of the tenant to allow the landlord, his agent or attorney, to take possession of such property for the payment of rent, said landlord shall have the right to reduce such property to his possession by action against the tenant to recover the possession of the same, and may hold or sell the same for the purpose of paying said rent unless said rent shall be paid before sale, and every landlord shall have a lien upon the crops grown or growing upon the homestead premises for rent thereof, whether the same is payable wholly or in part in money or specific articles of property or products or the premises or labor, and also for the faithful performance of the terms of the lease, and such lien shall continue for a period of six months after the expiration of the term for which the premises were leased, and in all cases when the demised premises shall be let or lease assigned, the landlord shall have the same right to force his lien against the special lessor or assignee as he has against the tenant to whom the premises were leased."

The lien having attached to the tenant's chattels to secure the payment of all rent that might become due under the contract of lease, it can only be displaced by sale of the goods and chattels in the ordinary course of trade, and where the tenant has sold his goods in bulk and they are about to be removed from the premises, the remedy of the landlord is in equity. Marsalis v. Pitman, 68 Tex. 624, 5 S.W 404; Ghio v. Shutts, 78 Tex. 375, 14 S.W. 860.

"The landlord may have an injunction to restrain the sale and removal of the property from the demised premises by the tenant or his assignee." Garner v. Cutting, 32 Iowa 547-552; Miller v. Bider (Iowa), 105 N.W. 594.

The relation of landlord and tenant existed between Murphy and Brown for the term of two years, and had a lien upon the goods of Brown to secure the payment of the rent for this term. The statutory lien is given the landlord against the goods of the tenant; the lien depends on the relation of landlord and tenant. If the relation exists so does the lien, and the lien will be coexistent with the relation. Nelson, Admr., v. Webb, 54 Ala. 436. By reason of their contract, and by reason of part performance under and pursuant to that contract, the relation of landlord and tenant existed between Murphy and Brown. Riggles v. Erney, 154 U.S. 244, 14 S.Ct. 1083, 38 L.Ed. 976; Danforth v. Laney, 28 Ala. 274; Reed v. Reed, 12 Pa. 120.

"A person who acquires a legal title, or an equitable title, or interest in a given subject matter, even for a valuable consideration, but with notice that the subject matter is already affected by an equity, or equitable claim in favor of another, takes it subject to that equity or equitable claim": Pomeroy's Equity Jurisprudence, sec. 591.

Notice to the purchaser of whatever the inquiry would have disclosed, and knowledge on the part of a purchaser of corn from a tenant, of the fact of the tenancy is notice to the purchaser of any landlord's lien thereon for rent. Watt v. Scofield, 76 Ill. 261; Smith v. Meyer, 25 Ark. 609.

Frank H. Hereford, and F. E. Curley, for Appellees.

The supreme court of this territory has never been called upon to directly determine the right of an appellee to file cross-assignments of error. It has, however, inferentially sustained such right. Arizona etc. Ry. Co. v. Nevitt, 8 Ariz. 56, 68 P. 550; Greene v. Hereford, 12 Ariz. 85, 95 P. 105.

The courts have recognized and upheld the assignment of cross-errors, because it obviates the necessity of two separate appeals, two separate records, and the consideration of two cases instead of one. See Merritt v. Richey, 127 Ind. 400, 27 N.E. 131; Duren v. H. & T.C. Ry. Co., 86 Tex. 287, 24 S.W. 258; Ry. Co. v. Prather, 75 Tex. 53, 12 S.W. 969.

Under the laws of the territory of Arizona the lease set up in the complaint created no estate in Brown, but was void and of no effect. In consequence, no lien could be predicated upon it. See, also, Bloom v. Noggle, 4 Ohio St. 51; Erwin v. Shuey, 8 Ohio St. 517; Reid v. Kleyenstaver, 7 Ariz. 50, 60 P. 79.

Our statutes provide that such a lease as is declared in this case can pass no interest in real estate; the statute does not limit its effect to purchasers without notice. Ariz. Rev. Stats., pars. 721, 725, p. 299. Questions of purchasers with or without notice are taken up by other sections of our statutes. Ariz. Rev. Stats., pars. 749, 735, pp. 301, 303.

OPINION

NAVE, J.

-- Appellants were plaintiffs below. Most of the evidence offered by them was ruled out upon objection. We shall state such facts as are pertinent to the opinion to be rendered, without distinction between facts admitted by the pleadings or proved and those facts which are in the record only as set forth in offered testimony.

Lizzie B. Murphey is the owner of a building in Tucson. In January, 1907, W. E. Murphey subscribed to a written instrument, as agent of Lizzie Murphey, which purported to lease to the defendant Brown a portion of this building for a period of one year, commencing on February 1, 1907, at a rent payable monthly in advance, provided that if Brown should not notify Murphey to the contrary on or before October 31, 1907, the lease should be extended for a second period of one year. The instrument was signed by Brown. It was not acknowledged by Brown or Murphey. The authority of Murphey to sign the instrument was not in writing. Brown entered possession pursuant to this instrument, and paid rent to and including the rent for the month of January, 1908, conducting therein a retail merchandising business. He did not give notice whereunder the lease should be terminated at the end of one year. Before the end of the month of January, 1908, Brown became insolvent, and made an assignment of all his property to defendant Sims for the benefit of his creditors. Sims sold Brown's entire stock of merchandise, it being still on the demised premises, to defendant Friedman, and this sale was consummated before the expiration of the month of January, 1908. Friedman immediately entered into possession of the stock, and advertised to sell it at public sale at reduced prices. Before the expiration of the same month, the plaintiffs Murphey instituted this suit against Brown, Sims, and Friedman, setting up substantially these facts, together with the further fact that Friedman purchased with knowledge of the tenancy; and prayed judgment that a lien exists in favor of plaintiff Lizzie B. Murphey for rent for the remainder of the term of two years contemplated by the lease, and that defendant Friedman be restrained from removing the stock of merchandise from the premises or from selling the same, to the end that the lien be not destroyed. An interlocutory injunction was granted. Brown was not served with process, and has not appeared in the action. At the trial the court refused to admit in evidence the written instrument, apparently upon the grounds that the authority of the agent to execute the same was not in writing, and that the instrument was unacknowledged by the lessor. The offer of oral testimony to substantiate certain allegations in the complaint was rejected, the rejection of such offer following logically from the determination of the court with reference to the admissibility of the written instrument. Judgment was rendered against the plaintiffs, and from this judgment they have appealed. Pending appeal, an injunction was granted maintaining the status of the property.

A variety of questions of law is presented for our determination. Without defining the relation of the several points to the assignment of error, we shall take them up seriatim.

1. The first question to be considered is: Does the statute which provides for a landlord's lien contemplate that the lien shall attach for rent as it becomes due, or does the lien attach at the beginning of the term to secure the rent of the entire term? The statute in question is paragraph 2695 of the Civil Code of 1901, the material part of which reads as follows: "Every landlord shall have a lien on all the property of his tenant not exempt by law, placed upon or used on the leased premises until his rent shall be paid, and such landlord, his agent or attorney, may seize, for rent, any personal property of his tenant that may be found on the premises or in the county where such tenant shall reside, but no property of any other person, although the same may be found on the premises, shall be liable for seizure for rent due from such tenant, and in case of failure of the tenant to...