Tigner v. First Nat. Bank of Angleton

• Decision Date: 27 January 1954
• Docket Number: No. A-4258,A-4258
• Citation: 264 S.W.2d 85,153 Tex. 69
• Parties: TIGNER et al. v. FIRST NAT. BANK OF ANGLETON.
• Court: Texas Supreme Court

Page 85

264 S.W.2d 85

153 Tex. 69

TIGNER et al. v. FIRST NAT. BANK OF ANGLETON.

No. A-4258.

Supreme Court of Texas.

Jan. 27, 1954.

Davis & Henderson, Angleton, for petitioners.

Rucks, Enlow & Kee, Angleton, for respondent.

HICKMAN, Chief Justice.

This is a contest between the heirs of a landlord and an attaching creditor involving the question of priority of liens. The trial court rendered summary judgment in favor of the heirs, and the Court of Civil Appeals reversed that judgment and rendered summary judgment in favor of the creditor on its cross motion. 258 S.W.2d 153.

Respondent, First National Bank of Angleton, instituted this suit against F. I. Warwick upon a promissory note and caused a writ of attachment to be issued and levied upon seven bales of cotton grown by Warwick as a tenant under a contract with George H. Bingham as landlord. The cotton was removed from the rented premises less than thirty days before the attachment was levied. No question is presented as to the regularity of the attachment proceeding. A plea of intervention was filed by the heirs of George H. Bingham, deceased, alleging that by written lease, dated October 19, 1946, Bingham leased to Warwick approximately three hundred acres of land for farming purposes for a term of five years, beginning January 1, 1947, at a rental of $2,500 for the first years and $3,000 payable annually in advance for each of the succeeding four years; that of the $3,000 rental to be paid in advance on January 1, 1950, for the ensuing calendar year only $1,500 had been paid, leaving an indebtedness owing by Warwick of $1,500 as rental for that year, 'which sum was secured by a statutory landlord's lien upon all crops grown upon the premises described in said lease.' It was alleged that Warwick planted approximately one hundred acres of the leased premises in cotton during that year, and that the seven bales of cotton covered by the attachment was all the cotton grown by him during that year.

It was further alleged that the plaintiff, the defendant, and the intervenors had agreed that the cotton should be sold free and clear of any lien and that the proceeds of such sale should be evidenced by a check payable jointly to the bank and the intervenor J. H. Tigner, and that 'if the lien of the intervenors, if any they had, should be determined to be then superior and prior to the attachment lien claimed by the Plaintiff, Intervenors should be entitled to the proceeds of the sale of said cotton to the extent of the indebtedness due them by Defendant, and, likewise, if the lien of the Plaintiff, if any it had, be determined to be then superior and prior to that claimed by Intervenors, it should recover the proceeds of the sale of said cotton to the extent of the indebtedness of Defendant to it.' Pursuant to the agreement the cotton was sold for $1,199.25, and the check is being held by the bank awaiting the outcome of the suit. The defendant, Warwick, filed no answer and made no appearance in the case. The intervenors filed a motion for summary judgment, and in support thereof filed an affidavit which, in substance, stated as facts the allegations in their plea of intervention. The bank filed a cross motion for a summary judgment. As noted above, the trial court granted intervenors' motion and denied the cross motion of the bank, while the Court of Civil Appeals granted the bank's cross motion and denied he motion of intervenors.

Intervenors have neither a common-law lien nor a contract lien. They rely solely upon their claim of a statutory lien under Article 5222 of the Revised Statutes as amended in 1931, Vernon's Annotated Civil Statutes, Act. 5222. We are, therefore, called upon to construe that statute, the provisions of which material to his case being as follows:

'All persons leasing or renting lands or tenements at will or for a term of years shall have a preference lien upon the property of the tenant, as hereinafter indicated, * * * whether the same is to be paid in money, agricultural products or other property; and this lien shall apply * * * to the crop raised on such premises. * * *

'This article shall not apply in any way or in any case where any person leases or rents lands or tenements at will or for a term of years for agricultural purposes where the same is cultivated by the tenant who furnishes everything except the land, and where the landlord charges a rental of more than one-third of the value of the grain and more than one-fourth of the value of the cotton raised on said land; * * * and any contract for the leasing or renting of land or tenements at will or for a term of years for agricultural purposes stipulating or fixing a higher or greater rental than that herein provided for shall not carry any statutory lien nor shall such lien attach in favor of the landlord, his estate or assigns, upon any of the property named, nor for the purpose mentioned in this article.'

This article was amended in 1915, Acts 1915, p. 77, but the amendment was declared unconstitutional in Culberson v. Ashford, 118 Tex. 491, 18 S.W.2d 585. The provision of that amendment which condemned it was 'any contract for the leasing or renting of land or tenements at will or for a term of years for agricultural purposes stipulating or fixing a higher or greater rental than that herein provided for, shall be null and void, and shall not be enforceable in any court in this state by an action either at law or in equity and no lien of any kind, either contractual or statutory, shall attach in favor of the landlord, his estate or assigns, upon any of the property named, nor for the purpose mentioned in this Article'.

The amendment of 1931, which is embodied in the second paragraph of the present article, does not deal at all with the validity of rental contracts, but only with statutory liens in cases like the instant one where no lien is fixed by contract. It does not undertake to limit the right of parties to contract. In construing the statute our sole concern, therefore, is to find under what conditions the statute creates a lien in favor of a landlord who did not create one by contract. The validity of the rental contract in this case is not questioned by us.

The question of who carries the burden of proof is not in the case as it comes to us. That would arise only upon a trial of the case upon its merits. The failure of one party in a hearing upon a motion for summary judgment to discharge the burden which would rest on him at a trial on the merits is no ground for a summary judgment in favor of the other party. In order to be entitled to a summary judgment, the burden rests upon the landlord to prove that he is entitled thereto as a matter of law. Rule 166-A, Texas Rules of Civil Procedure. When both parties move for a summary judgment, the burden is upon each to prove clearly his right thereto, and neither party can prevail because of the failure of the other to discharge his burden. Steinberg v. Adams, D.C., 90 F.Supp. 604; Walling v. Richmond Screw Anchor Co., 2 Cir., 154 F.2d 780; Federal Practice and Procedure, Barron and Holtzoff, §§ 1235 and 1239; Moore's Federal Practice, Vol. 6, § 56.13.

We cannot adopt the theory that, since it cannot be determined until after crops are harvested whether the rental charge exceeded the value of one-third the grain plus one-fourth the cotton, the Legislature intended that the amendment should not apply when the contract is for money rent. That theory was rejected by the Waco Court of Civil Appeals in a wellreasoned opinion in Citizens State Bank of Alvarado v. Schmauder, Tex.Civ.App., 139 S.W.2d 619, and by clear implication was rejected by this court in Culberson v. Ashford, 118 Tex. 491, 18 S.W.2d 585. We have examined the record in the last-mentioned case, and it discloses that the very reasoning upon which that theory is based was rejected therein. The tenant brought suit in the justice court against his landlord for double the amount of money rent paid by him. The rental contract was for $5 per acre rent on ten acres of land planted in cotton. The value of the cotton harvested on the land that year was $100. The tenant, having paid $50 as rent, sued under the amendment of 1915 for double that amount. There was an additional issue in the case concerning a $22 payment, but that is immaterial here. Upon a trial of the case the landlord, over the objection of the tenant, was permitted to testify that the land on an average year would have yielded cotton of the value of at least $200. The question at issue, and the only question, was whether the provisions of the amendment of 1915 were applicable to that contract for money rent. The trial court held that the amendment was not applicable, and the tenant appealed. The landlord filed no brief in the Court of Civil Appeals nor in this court, and no question as to the validity of the amendment was raised in the Court of Civil Appeals. The position of the tenant before that court was that after the crop was harvested it was disclosed that the rental charge was one-half the value of the cotton, and that, therefore, he was entitled to recover, and that the trial court erred in admitting the testimony of the landlord about what crops the land would have made on an average year. The Court of Civil Appeals certified the question of the constitutionality of the statute to this court. In the certificate the Court of Civil Appeals stated that in its opinion the appellant (tenant) was entitled to have the case reversed if the statute referred to was constitutional. In other words, it held that the statute was applicable. In answer to that question this court held that the amendment was unconstitutional. Had this court been of the opinion that the statute was inapplicable, it would not have answered the question and passed on the constitutionality of the statute. This court will not answer an abstract question of law submitted in a certificate from the Court of Civil...