Pitts v. Baskin

• Decision Date: 23 November 1925
• Docket Number: 25128
• Court: Mississippi Supreme Court
• Parties: PITTS v. BASKIN et al. [*]

106 So. 10

140 Miss. 443

PITTS v. BASKIN et al. ^[*]

No. 25128

Supreme Court of Mississippi

November 23, 1925

Division A

1. LANDLORD AND TENANT. Waiver of lien of rent held limited, and to

give no right to buy from tenant.

Landlord's waiver, written in tenant's mortgage on crop to bank to secure notes for supplies, of rents and any lien till notes secured by the mortgage were paid, is not a general one, but merely postpones payment of rent in favor of the notes, and gives mortgagee, or any one else, no right to purchase the crop.

2 PLEADING. Conclusions or inferences not admitted by demurrer. Demurrer does not admit conclusions or inferences.

3 PLEADING. Demurrer may be based only on facts stated, and not on inferences.

Demurrer to bill may not be based on any inferences or conclusions arising on bill, but only on facts therein stated.

4 PLEADING. Agency of tenant for complainant landlord, to sell cot-

ton raised, not assumed from allegation of bill.

From allegation of bill of landlord, to recover, as subject to lien for rent, value of cotton sold by tenant to defendants, that the year previous tenant produced a crop on the land, paid bank its claim for loan for supplies, which complainant had allowed to be a prior lien, and then paid complainant, agency of the tenant for the landlord to sell the cotton, cannot be assumed, in aid of demurrer to bill, it not being alleged how tenant paid complainant and bank, whether with money or cotton or in some other way.

HON. E. N. THOMAS, Chancellor.

APPEAL from chancery court of Sunflower county, HON. E. N. THOMAS, Chancellor.

Suit by Mrs. Mamie L. Pitts against E. Baskin and others. Bill dismissed, and complainant appeals. Reversed and remanded.

Cause reversed and remanded.

Everett & Forman, for appellant.

There can be no contention in this case that a landlord's lien did not exist in favor of Mrs. Pitts for her rent for 1923. Section 2330, Hemingway's Code. Therefore, there are only two questions, as we see it, presented on this appeal: (1) Was the waiver in favor of the Bank of Indianola for the furnishing of Baskin in 1923 a general waiver by the landlord of her statutory landlord's lien? (2) Is a tenant on a farm the agent of the landlord to the extent that the acts of the tenant are binding on the landlord?

As to the first question, the bill alleges that the lien of the appellant as landlord was specially waived in favor of the Bank of Indianola and no one else, and that it was not her intention to waiver to any one else, and that Baskin sold the cotton to certain cotton buyers without her knowledge or consent. We find all the authorities unanimous on the question that: "A waiver is the intentional relinquishment of a known right." 27 R. C. L., page 904, 40 Cyc. 252; Knights of Pythias v. Quinn, 78 Miss. 531; 17 R. C. L., par. 16, page 607, 27 R. C. L. 908, 27 R. C. L. 910.

As to the second question presented, that of agency as between the landlord and tenant, we take it that counsel will not contend that a tenant on a farm is the agent of the landlord, to the extent that the tenant's acts will bind the landlord. This question is also one of fact to be determined by the proof, so as to show whether or not, the course of dealing between the landlord and his tenant and with the public is such as to create the relationship of principal and agent so as to estop the principal from denying the acts of his agent. Unless that relationship exists then, most certainly, the acts of the tenant would not bind or estop the landlord and the bill, not showing such relationship, it is not demurrable on that ground, but that is a fact which must be set up in an answer and the relationship between the landlord, her tenant and the public must be clearly proved in order that the court might determine whether the lien was waived and the complainant estopped from setting up lien. Davis v. Butler, 91 So. 279.

Therefore, we submit that the questions as presented by the demurrer are questions of fact to be determined upon the evidence introduced upon proper allegations in an answer and are not questions of law to which a demurrer would lie, and for that reason, this case should be reversed.

Gardner, Odom & Gardner, also for appellant.

I. The bill of complaint shows on its face that complainant waived her landlord's lien for rent on cotton purchased by the defendants, as shown by the second and third grounds of the demurrer.

II. That the bill of complaint shows on its face that the defendant, E. Baskin, was duly authorized to act as agent of complainant in selling said cotton, as shown by the fourth and fifth grounds of said demurrer.

Section 2330, Hemingway's Code, makes the landlord's lien paramount to all other claims, liens or demands upon the agricultural products produced on leased premises. The foregoing statute first appeared in its present form as section 1301, Code of 1880, and has since remained unchanged. Our court in construing this section has uniformly held that the landlord's lien is a prime lien, and may be successfully asserted against a bona-fide purchaser, whether with or without notice of the existence of the lien. The law in this regard is too well settled to require extended citations. Newman v. Bank of Greenville, 66 Miss. 323, 5 So. 573; Eason v. Johnson, 69 Miss. 371, 12 So. 446; Warren v. Jones, 70 Miss. 202, 14 So. 25; Millsaps v. Tate, 75 Miss. 150, 21 So. 663; Ball v. Sledge, 82 Miss. 749, 35 So. 447; Robinson Co. v. Weathersby, 101 Miss. 724, 57 So. 983.

There was no waiver or lien for rent as to cotton buyers. It seems clear that the waiver was specific, and that no reasonable mind would argue that appellant executed a general waiver of her landlord's lien. Furthermore, since the waiver and deed of trust were duly recorded, all persons dealing with E. Baskin were given notice that the waiver was limited in its scope and only in favor of the Bank of Indianola for the amounts named in the deed of trust.

Under the well-established rule of pleadings in this state, the allegations are confessed by the demurrer and must be considered as true in passing on the merits of the demurrer. Griffith's Chancery Practice, sec. 288, page 286; Globe, etc., Ins. Co. v. Fireman's Fund, etc., Co., 97 Miss. 149, 52 So. 454; State v. Nichols, 106 Miss. 419, 63 So. 425; U. S. F. & G. Co. v. First State Bank, 103 Miss. 91, 60 So. 47; Polk v. Hattiesburg, 109 Miss. 872, 69 So. 675; Batesville Southwestern Railway Co. v. Mims, 111 Miss. 574, 71 So. 827; Lumber Co. v. Norton, 111 Miss. 720, 72 So. 140.

Therefore, in view of the express terms of the waiver and the positive allegations of the bill of complaint, we respectfully submit that the second and third grounds of demurrer are untenable and wholly devoid of merit.

Tenant not the agent of the landlord. Appellees say that the bill of complaint shows on its face that appellant held out her tenant, E. Buskin, as her authorized agent in selling the cotton and is, therefore, estopped to deny such agency. The trouble with this position is that the allegations in the bill of complaint do not sustain this contention. On the other hand, the contrary affirmatively appears from the allegations in appellant's bill.

There is no apparent merit in any of the grounds of demurrer, and, with due deference to the learned chancellor who tried the case in the court below, his action in sustaining the demurrer is clearly erroneous. In fairness to the lower court, we believe that his action in sustaining the demurrer was probably based on a misconception of the holding of our court in Judd v. Delta Grocery & Cotton Co., 133 Miss. 866, 98 So. 243. Counsel attempts to base their demurrer on inferences and not on facts alleged in the bill of complaint. It has long since been settled by our court that such demurrers are not well taken. We find the general rule in support of our position stated in the recent work of Griffith on Mississippi Chancery Practice, par. 288, page 287. See also Griffin v. Dogan, 48 Miss. 22.

We think that it would be out of place to cite authorities in this brief on the question of agency and estoppel, for the reason that under the allegations of the bill of complaint these questions, as we see them, do not enter into the issues now before this court. The demurrer, in our judgment, was improperly sustained.

C. L. Gwin and C. B. Snow, for appellee.

I. The waiver of the landlord's lien to the Bank of Indianola constituted a general waiver of the lien of the landlord. From the waiver itself, the landlord not only waived her landlord's lien, but waived the payment of her rent until the notes described in the deed of trust to the Bank were paid.

II. The tenant was the agent of the landlord for the sale of the cotton involved. Seavy v. Godbold, 99 Miss. 113; Phillips v. Thomas, 128 Miss. 729, 91 So. 420; Judd v. Delta Grocery Co., 98 So. 243.

Argued orally by H. T. Odom, for appellant, and C. B. Snow, for appellees.

OPINION

MCGOWEN, J.

Mrs Mamie L. Pitts filed a bill in the chancery court of Sunflower county, against E. Baskin, tenant, and a number of cotton buyers,...