Dulany v. Dickerson , 12 Ala. 601 ( 1847 )

ORMOND, J.

The case of Thompson v. Spinks, at the present term is a decisive authority, that this action cannot be maintained. In that case the landlord brought trespass against a sheriff, who had levied an execution against the tenant, on cotton produced on rented land, which the tenant had removed off the premises, without paying the rent. It was held he could not maintain trespass, because he had no property, either general or special, in the cotton, but merely a lien upon it, for the payment of the rent, and that not having either the actual possession, or the general property, which would draw to it the right of possession, he could not maintain trespass.

If then, the taking under such circumstances is not a trespass upon the landlord, it is difficult to perceive upon what principle an action of assumpsit, for money had and received would lie. When a trespass is committed upon the personal property of another, he may sue in trespass for the damages, or waiving the tort he may affirm it, and recover as upon a contract. But here there was no tori committed upon the plaintiff, nor was there any contract, either express or implied, on the part of the purchaser from the tenant, to pay the rent, and upon no principle, with which we are acquainted, could assumpsit be maintained to recover the value of the rent.

The statute gives the landlord an effectual means of recovering his rent, by declaring a lien upon the crop, forbidding its removal until the rent is paid, and giving the right to levy an attachment upon it, which may doubtless be done, though the crop has been removed, and is in the hands of a purchaser from the tenant, if he purchased with knowledge of the lien of the landlord. It is possible he may also by action on the case, pursue it under such circumstances in the hands of the purchaser, and thus enforce his lien, but he cannot maintain assumpsit against him. Nor are we prepared to say, that an unsatisfied judgment against the tenant for the rent, would interpose any obstacle to such an action. However this may be, it is clear the court correctly charged the jury, they should find for the defendant, as there could be no recovery against him upon the facts, in this form of action.

Judgment affirmed.