White v. Miazza-Woods Const. Co

• Decision Date: 26 April 1920
• Docket Number: 21099
• Court: Mississippi Supreme Court
• Parties: WHITE v. MIAZZA-WOODS CONST. CO

84 So. 181

122 Miss. 213

WHITE v. MIAZZA-WOODS CONST. CO

No. 21099

Supreme Court of Mississippi

April 26, 1920

March 1920

1. LANDLORD AND TENANT. Bona fide purchaser of tenant's goods before distress for rent is protected.

A landlord has no lien upon his tenant's goods, other than agricultural products, and, before distress for rent, a bona-fide purchaser of such goods, whether on or off the leased premises, will be protected.

2. LANDLORD AND TENANT. Statute does not give lien for rent on property on leased premises; replevin lies against landlord for possession.

Section 2851, Code of 1906 (section 2349, Hemingway's Code), does not give landlord a lien on the property on leased premises for unpaid rent. A purchaser for value of office furniture on leased premises may maintain replevin proceedings against the landlord for possession of same though the seller be in arrears for rent due the landlord.

HON. R W. HEIDELBERG, Judge.

APPEAL from Circuit Court, Lauderdale County, HON. R. W. HEIDELBERG Judge.

Replevin by T. J. White against the Miazza-Woods Construction Company. Judgment for defendant, and plaintiff appeals. Reversed, and judgment rendered for plaintiff.

Judgment reversed.

W. L. Scott, for appellant.

I thought the questions involved in this suit were settled in the cases of Richardson v. McLaurin, 69 Miss. 70, and Blake-Brunswick-Collender Co. v. Murphy, 89 Miss. 264.

I especially thought that the later case in 89 Miss. 264, which was a discussion of section 2851 of the code was decisive of the question at issue, and as I understand that case it holds: "A landlord has no lien or claim for rent, as against the mortgagee upon property mortgaged by the tenant and subsequently brought upon the leased premises; and payment or tender of rent due is not a condition precedent to seizure of the property for the enforcement of the mortgage, under Laws 1894, ch. 52 p. 44 (section 2851, Code) providing that chattels on leased, premises shall not be liable to be taken under process unless upon payment or tender of unpaid rent."

Since the filing of this case something over a year ago the case of Piano Co. v. Shuler, 113 Miss. 763, too, has been decided by this court, and the opinion in that case among other things especially points out in very well considered opinion that the replevin route was the proper route for appellant to go to obtain his property, which case again holds that property, except agricultural products on which there is a lien for rent, found or being on any demised premises, not belonging to the tenant or to some person bound to pay the rent of such premises shall not be liable to be destrained for rent.

Section 2867, Code of 1906, is practically in the language of the foregoing paragraph, and that statute in the light of the construction placed upon section 2851, it seems to me settles the proposition that plaintiff below, appellant here, should have had judgment and not appellee.

The court got an idea, however, from the very able argument of counsel for appellee that since seven dollars and fifty cents of the rent had already accrued at the time appellant bought the property, and since the property was brought upon the premises subject to the mortgage which distinguished that case from the case at bar, which was then answered by the provision in section 2859 of the Code of 1906, that property, other than agricultural products upon which there is a lien, so carried off and sold in good faith for a valuable consideration, before seizure made shall not be afterwards liable to be taken and seized for rent or supplies.

There is no contention here that this transaction was not in good faith, though counsel for appellant did contend that the transaction as made amounted to a mortgage, instead of sale, and contract to re-sell. Granted that it was a mortgage, for the sake of argument only, then the mortgagee's rights should be preserved, and his interest in the property to the extent of that interest preserved.

Section 2867 provides for that, in that it holds: "But if the tenant or other person liable for the rent have a limited interest in the property, the same may be destrained, and the interest therein of such tenant or person liable for the rent may be sold," but the right of the landlord to destrain the interest of the tenant is not involved here but might have been, should the appellee have shown this to have been a mortgage and too, that the tenant did in fact have a limited interest therein which was in no wise shown.

I submit, however, that the testimony touching the first transaction was admissible too to show a completed transaction on that day and accounted for the manner in which the paper was drawn, but did not vary its terms in the least; in other words no paper was necessary to evidence the first transaction which was a straightout sale, transferring title then and there together with delivery of the thing sold, and title remained in appellant all night, and did not pass back to Allen the next day by virtue of the drawing of the bill of sale and the contract to re-sell, for it took as much to convey title back to Allen as it did to convey it out of him, and the record shows that that was never done and not attempted, nor is there any hint at any loan being asked or attempted, nor is there any hint at the relation of debtor and creditor having existed between Allen and White, except the fact that written on the back of the paper is the statement "extended for sixty days by agreement," which in the light of all the facts of the case shows that Allen had what is usually termed an option on the property, which option for five dollars he got extended for sixty days, and when after the sixty days had expired he abandoned the property, went away and when seen next gave appellant an order to his landlord to turn the property over to appellant he clearly demonstrated that he had no interest in the property, claimed none, had no title to it, and claimed none.

Finally on this record I submit that appellant should have had a peremptory instruction to find for the plaintiff for the right of possession of said property was the owner of the property in dispute when the relationship of landlord and tenant between him and the appellee, the Miazza-Wood Construction Co., began. That point is not disputed at all. It was his when he moved into the building and placed his furniture into the office which he rented. It was his when he went to see the fire insurance agent and had his policy so changed as to cover his office furniture after he had moved it from his old location to the office rented from the appellee. It was his when the rental agents of the appellee were after him from time to time to collect his rent; he was in possession of it, using it, controlling it all these four months and a half. And no change in ownership possession or control was indicated until after the Christmas holidays of 1916, when Allen the tenant, had decided to leave town. Then it was that the appellant appears with his "bill of sale" and demands possession. And we desire to call the court's attention to that "bill of sale" which appears on page 8 of the record. From the face of it and from the endorsement, "Oct. 16, 1916 extended 60 days by agreement from this date, T. J. White" and by the way it was handled by its owner, and the...