Thompson v. Spinks , 12 Ala. 155 ( 1847 )

ORMOND, J.

The act of 1807, forbids the taking in execution, goods, or chattels, found upon any rented premises, and provides that they shall not be removed therefrom, unless the party suing out the execution, pay, or tender to the landlord., one year’s rent, and the sheriff is required to levy, .and pay to the plaintiff, as well the money so paid for the rent, as the execution money. [Clay’s Dig. 210, § 45.] In 1812, the common law right of distress for rent, was abolished.

In 1821, an act was passed subjecting the crop grown on any rented land, to the payment of the rent, and requiring one-year’s rent to be paid before an execution could be levied upon the crop. [Id. 506, § 3.] In 1843, an act was passed declaring that “ the crop grown on any rented land, shall not be removed off the premises of any such rented land, by the tenant, or lessee, or any one else, until the tenant, or lessee, shall have first paid to the landlord, or lessor, his agent, or attorney, all the rent in arrear.” The second section of the act, gives the landlord process of attachment, when the tenant has removed, or is about to remove the crop, or any part thereof from the rented premises. [Ib. § 5.]

The first of these statutes is borrowed from, and is almost a literal copy of the 4 Anne, c. 14, and the last was probably suggested by the 11 Geo. 2, c. 19, which gives the landlord the right to distrain on goods fraudulently removed from the rented premises; but neither of these statutes gave the landlord any property in the goods of the tenant, either general or special, but merely created a lien in his favor.

The policy of this State, as declared by the statutes cited, is, to abolish the common law right of distress, and to confine the lien of the landlord to the product of the rented land. The prohibition against the removal by the tenant, or' any one else, of the crop from any rented land, until all the rent in arrear is paid, gives him a lien upon it for the payment of all the rent due, except as against an execution creditor, as against whom he can have only one year’s rent. But this is a lien merely, and not a right of property in the crop. The means of enforcing this lien, is provided by the act of 1843, by attachment against the tenant for the rent. [Hawkins v. Gill, 6 Ala. 620.] We need not inquire in this case, whether this lien would be lost by a removal, and sale of the crop, to one ignorant of the existence of the lien, as no such fact exists in this case. It is manifest the effect of our statute is, that rent in arrears, or falling due, is merely a debt due from the tenant to the landlord, for the payment of which, the latter has a lien on the crop grown on the premises, and it results necessarily, that he cannot maintain trespass, for the recovery of the crop when removed, either by the tenant or a stranger. To maintain the action of trespass, for injury to a personal chattel, the plaintiff must establish, either actual possession, or a right to the possession, from having the general property, which would draw to it the right of possession ; trespass being founded on possession, as trover is on property in the thing. [Ward v. Macauly, 4 Term, 490; Cooper v. Chitty, 1 Burr. 20; Croft v. Allison, 4 B. & Ald. 590; Smith v. Milles, 1 Term, 475.]

It is quite obvious, the lien of the plaintiff is not a general property in tbe crop, nor did the plaintiff have in fact the possession, he cannot therefore maintain trespass. -His remedy,, if he did not resort to the statute remedy by attachment, was an action on the case.

The placing the cotton in the possession of Davis, gave him such a special property in it, as might have enabled him, •possibly, to maintain trespass for an injury to it, but could not invest the plaintiff with such a right. Davis was the bailee of the tenant, and his authority being derived from, might be revoked by him. It conferred no right in the cotton to the plaintiff, which he did not have before, in virtue of his lien.

It results from what has been said, that the court erred in its refusal to charge as requested, and the judgment must be •reversed, and the cause remanded.