Thompson v. Hill

• Decision Date: 23 May 1927
• Docket Number: 25879
• Citation: 147 Miss. 489,112 So. 697
• Court: Mississippi Supreme Court
• Parties: THOMPSON et al. v. HILL et al. [*]

112 So. 697

147 Miss. 489

THOMPSON et al. v. HILL et al. ^[*]

No. 25879

Supreme Court of Mississippi

May 23, 1927

Division A

1. LANDLORD AND TENANT. Sales. Landlord selling personalty to tenant does not by taking chattel mortgage waive statutory landlord's lien on crops or purchase-money lien.

Statutory lien is not waived by taking other security, unless the security taken is inconsistent with that given by law, so landlord selling personal property to tenant for use on leased premises, by taking chattel deed of trust on the property sold, does not waive his statutory landlord's lien on the crops raised on the leased premises, or his statutory purchase-money lien on the property itself for the balance of the purchase price thereof.

2 BANKRUPTCY. Bankrupt held not relieved by discharge from personal Liability on notes not listed in schedules with petition, holders in due course having no notice (U. S Compiled Statute, section 9601).

Under U.S. Compiled Statute, section 9601, discharge in bankruptcy does not relieve bankrupt from personal liability on notes where they were not listed in the schedules filed with the petition in bankruptcy, and the holders in due course thereof were not given notice of pendency of the bankruptcy proceeding.

HON. C L. LOMAX, Chancellor.

APPEAL from chancery court of Tallahatchie county, Second district HON. C. L. LOMAX, Chancellor.

Suit by C. H. Thompson against A. J. Hill and others. From decree dismissing the bill of complaint and also the cross-bill of defendant Stewart-Gwynne Company, complainant and cross-complainant appeal. Reversed and remanded.

Decree reversed and cause remanded.

J. J. Breland and Lamar F. Easterling, for appellant, C. H. Thompson.

I. Under the contract of lease between Thompson and Hill, Thompson had a landlord's lien on all crops grown on the leased premises for the year 1923 and also had a lien for the value of the teams and implements sold to Hill at the same time and used by him on the leased premises in making the crops.

The law on landlord and tenant is so plain that it is only necessary to refer to sections 2330-31, Hemingway's Code. Thompson was the lessor of the premises and had a paramount lien on all agricultural products raised on the leased premises to secure the payment of his rent. By positive statute this lien is paramount to all other liens. It will take precedence over that of mortgages or deeds of trust. Therefore, Thompson had a lien which will be enforced unless the same has been lost to him in some way known to the law.

It was first claimed by W. R. Humphrey that Thompson lost his lien by allowing or permitting the storage in the warehouse and the compress tickets to be taken by Hill. This defense involves a consideration of the evidence in the case.

If it can be said that the answers of Humphrey and Hill raised the question of a waiver of the landlord's lien, the burden of proof was upon them to prove that Thompson had waived his landlord's lien and we say that the proof is utterly insufficient to show this.

When the leased contract was drawn up between Thompson and Hill on December 8, 1922, it was in writing and embodied the whole agreement between the parties, covering the amount to be paid, the date of the payment, the property listed, the personal property sold, and what the landlord obligated himself to do and what the lessee obligated himself to do. It will be presumed that this contract embraced the entire contract between the parties.

Sections 2330-31, Hemingway's Code, give appellant, C. H. Thompson, an absolute and paramount lien on all the crops raised on the leased premises for the rent and furnish thereunder made to the tenant. When the note, lease, bill of sale, deed of trust and notes consummating the lease contract were made, the statute giving the lien and remedy for rent and advances enters into and forms a part of the contract of lease. 36 C. J., page 488, section 1448.

When it is attempted to show by oral evidence that before the contract was entered into, Mr. Thompson had agreed or had said in the negotiation that Hill should sell his cotton or that Thompson could waive his lien in this manner is insufficient, because the very object and purpose of such testimony is to contradict the agreement in writing between the parties giving the lien and the right of enforcing it against the agricultural products. We say that this evidence was improperly admitted, for it has been held in a long line of cases by this court that prior or contemporaneous agreements cannot be admitted to contradict or vary the terms of a written instrument. Chicago Bldg. & Mfg. Co. v. Higginbotham, 29 So. 79; Felb v. Stewart, 28 So. 819, 78 Miss. 187; Thompson v. Bryant, 20 So. 655, 75 Miss. 12; Baum v. Lynn, 18 So. 428, 72 Miss. 932; Johnson v. Johnson, 21 So. 147, 74 Miss. 549; O'Neal v. McCloud, 28 So. 23; Milburn Gin & Machine Co. v. Ringold, 19 So. 675; Houck v. Wright, 23 So. 442; Maxwell v. Chamberlain, 23 So. 266; Sellers v. Dickert, 64 So. 40; F. Discount Co. v. Fletcher, 61 So. 308, 104 Miss. 251; McCall Co. v. Parsons-May-Oberschmidt Co., 66 So. 274, 107 Miss. 865; Ohio Pottery Co. v. Pickle & Son, 66 So. 321; Hightower v. Henry, 37 So. 745, 85 Miss. 476.

In further support we refer also to: Ballard v. Brown, 93 Miss. 104, 46 So. 137; English v. N. O. & N.E. Co., 100 Miss. 809, 57 So. 223; N. O. & N. E. R. R. Co. v. Lott, 118 Miss. 157, 79 So. 1; Garner v. Garner, 117 Miss. 694, 78 So. 623; Germania Life Ins. Co. v. Boldin, 100 Miss. 660, 56 So. 609; Hickman Ebbert Co. v. Asa W. Allen Co., 111 Miss. 161, 71 So. 310; Cooper v. Robertson Inv. Co., 107 Miss. 108, 77 So. 953; Cox v. Reed, 113 Miss. 488, 74 So. 330.

We presume that counsel for appellee will attempt to bring this case within the rule announced in Judd v. Delta Gro. Co., 98 So. 243; Phillips v. Thomas, 91 So. 420; Seavy v. Godvold, 99 Miss. 113, 54 So. 838. But in all of these cases the evidence shows that the landlord had entrusted the tenant to sell the cotton or there was a relationship or habitual custom on the part of the landlord to let the tenants sell the cotton, but we submit that in the instant case there is no such proof. Mere silence or inaction on the part of the landlord will not waive his paramount lien. In order to waive his lien he must commit some positive act such as would work an estoppel, or else he must make the tenant his agent for the purpose of selling his cotton.

We submit that a landlord's lien is paramount even to a deed of trust given by the tenant upon the crop, and that in order to destroy the landlord's lien it must be by a strong statement of facts showing waiver on the part of the landlord.

The proposition put forward by W. R. Humphrey about the negotiability of the warehouse receipts does not "cut any ice" in this case. We think it was held in Campbell v. Farmers Bank of Boyle, 90 So. 436, that allowing the tenant to store the cotton and take a compress ticket therefor does not waive the landlord's lien.

Pending this suit, Mr. A. J. Hill was adjudged a bankrupt and pleaded his discharge in bankruptcy as a bar to any decree against him by either Mr. Thompson or Stewart Gwynne Company. In the fall of 1923 Mr. Thompson had a conference with Mr. Hill and Mr. Hill admitted that he had compress tickets for twenty bales of cotton raised on the Edmondson place, which Mr. Thompson says Hill refused to turn over to him. Now, we submit, that even if it could be held that Thompson had authorized Hill to sell any cotton from the leased premises prior to this, this conference was a revocation of Thompson's alleged statement to Hill.

Hill's conversion of this twenty bales of cotton is not a claim probable in bankruptcy even if the notice given to Thompson and Stewart Gwynne Company of the bankruptcy proceedings be held sufficient. Hemingway's Code, sections 864, 895, 992, 1019, and 1132; Porter v. State, 83 Miss. 23, 35 So. 218; Polk v. State, 65 Miss. 433; Baker v. Bryant Fert. Co., 272 F. 473; "Conversion," 18 A. L. R. 1426; In re Stenger, 283 F. 419, 7 C. J., page 402, note 8, section 38; Bever v. Swecker, 138 Iowa 721, 116 N.W. 704. See, also, note under section 718 (e), Hallagan v. Dowell, 139 N.W. 883, holding that a fraudulent appropriation of the property or money of another is willful and malicious injury to such property.

We say, therefore, that if appellee's theory that he was the agent of Thompson in the sale of the cotton should be held to be correct, then Hill is liable to Thompson and Stewart Gwynne Company, both under the bankrupt law cited in 7 Corpus Juris 402.

II. The cross-bill of appellant Stewart Gwynne Company. Stewart Gwynne Company was the assignee of the two notes for one thousand dollars each, executed by A. J. Hill on December 8, 1922, to C. H. Thompson and secured by a chattel mortgage on the mules, teams, and implements sold and delivered to Hill contemporaneously with the execution of the lease contract. These notes and chattel mortgage were assigned on January 12, 1923, just a little over thirty days from the time they were taken.

The undisputed evidence in the case is that Stewart Gwynne Company was an innocent purchaser for value of these notes before maturity; in fact, just about thirty days after their execution. As the holder of these notes, when brought into this case, Stewart Gwynne Company asserted its landlord's lien on the crops raised on the leased premises.

The gravamen of the answer of Humphrey to the cross-bill of Stewart-Gwynne Company was that Thompson in taking a chattel mortgage for the mules, tools and implements furnished to Hill, his tenant, waived a landlord's lien. We submit that neither the answers of Humphreys nor of Hill sufficiently and clearly plead the...