Thomas & Davis v. Shell Bros
| Decision Date | 23 January 1899 |
| Citation | 76 Miss. 556,24 So. 876 |
| Parties | THOMAS & DAVIS v. SHELL BROS |
| Court | Mississippi Supreme Court |
November 1898
FROM the circuit court of the first district of Chickasaw county HON. E. O. SYKES, Judge.
This case was tried de novo in the circuit court on appeal from a judgment in favor of Thomas & Davis, plaintiffs, who had seized, under execution, certain cotton produced by one Brasfield, the judgment debtor, on land rented from R. M Dulaney. Shell Bros., who were in possession of the cotton made affidavit and gave bond as claimants, and retained the property. Thomas & Davis moved the court to require them to file a bill of particulars or contractual demands under which they claimed the cotton, and a motion was also made by them to dismiss the appeal of Shell Bros. from the justice court for want of such interest in the property as would entitle them to maintain their claim. Shell Bros. then admitted that they claimed under a transfer from Dulaney of his claim against his tenant, Brasfield, for rent due and in arrear. Both the motion for a bill of particulars and that for a dismissal of the appeal were overruled, and, the trial having resulted in a verdict and judgment for the claimants, Shell Bros., on the overruling of plaintiff's motion for a new trial, they prosecuted this appeal.
Affirmed.
W. S. Bates, for the appellants.
1. The landlord must not only have a right to an attachment for rents due and in arrear, but he must proceed according to the law in the employment of the summary and extraordinary remedy provided for the enforcement of his right to charge the farm products of the tenant. Ch. 72, code 1892; Westmorland v. Wooten, 51 Miss. 825-827; Towns v. Bowman, 23 Miss. 186; Dudley v. Harvy, 59 Miss. 34-36; McGill v. Howard, 61 Miss. 411-412; Cloud v. State, use, etc., 53 Miss. 663. We assume that until an actual seizure of the cotton under the landlord's authorized process of attachment, and dormant lien thus quickened, the lien given the landlord on the products in controversy was utterly impotent, and it must follow that the ownership and right of property was still complete in Brasfield when the cotton was taken under the execution levy of appellants. Mayre v. Dyche, 42 Miss. 347-375; Stamps v. Gillman, 43 Miss. 457-464; Canterberry v. Jordan, 27 Miss. 96-97.
2. The question before the court in this proceeding, as between these parties, was whether or not Brasfield was due his landlord, Dulaney, any amount in arrear for rent and supplies, and, if so, how much? Less is not required of a landlord when resorting to legal process to force collections of his rents under the provisions of the code chapter giving him a prior lien. Certainly the motion for a bill of particulars should not have been overruled. Briscoe v. McElween, 43 Miss. 556; code 1892, §§ 202 and 205; Bank v. Hoyt, Bros. & Co., 74 Miss. 221; code 1892, § 705.
Mayes & Harris, for the appellees.
1. If we analyze chapter 72, code of 1892, and run through all of its provisions, it will be seen that that chapter does not contemplate the adoption of its procedure as against the execution creditor of a delinquent tenant. We submit that a comparison of chapters 139 and 172 will show that so far from chapter 72 being exclusive remedy for the landlord in such case as against the execution creditor, such chapter does not apply to that case at all, and § 139 is the exclusive remedy, if there be any exclusive remedy.
This not the case of a stranger whose property has been found upon the demised premises and has been seized by the landlord for his rent in arrears. There are decisions of this court that in such case the remedy provided by statute for the stranger is the sole remedy which he has, and that if he does not avail himself of that remedy he is without any. But the reasoning of those...
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