Givens v. Easley , 17 Ala. 385 ( 1850 )

DARGAN, C. J.

It cannot be .denied but that the corn raised by the plaintiff was liable to pay the rent due the landlord. The act of 1821, as well as the act of 1843, prohibits the removal of the crop grown on rented land until the rent is paid. These statutes create a lien on the crop to secure the rent, which may be enforced by attachment if the crop be removed or be about to be removed from off the demised premises before the rent is paid. — Clay’s Dig. 508. But it .is in-, sisted that the sheriff levied on more than was sufficient to pay the rent, and from his neglect McKune, the tenant, was permitted to use or dispose of a part of the corn raised by him on the premises after the levy of the attachment, in' consequence of which it became necessary to sell the corn of the plaintiff. Thq. answer to this is, that all the corn was. liable to pay the rent, without regard to the question of ownership between the tenant and the plaintiff. The sheriff might have levied on all or any portion of it, and if he sold no more than was necessary to pay the rent and returned the balance, he could not be sued in trover. Indeed he incurred no liability, unless he could be made liable for an excessive levy. But we will not inquire under what circumstances a sheriff will be held liable for an injury resulting from an excessive levy, or what would be the proper remedy for such an injury, if the sheriff only sold enough of the goods to satisfy the debt; for in the case before us, although the sheriff may have levied on more than enough to pay the rent, yet no more was actually removed or sold by him than was sufficient for that purpose. That McKune used or disposed of a part of his corn levied on, which was left by the sheriff on the premises, cannot give the plaintiff a right of action against the sheriff, for the corn of the plaintiff was liable for the rent, and no part of it w'as satisfied or discharged until the corn was sold. That McKune may have used or disposed of a part of the crop after the levy was made could work no satisfaction of any part of the rent; the whole was due when the crop was sold, and no more was sold than was sufficient to pay it. There is no error in the judgment, and it must be affirmed.

Chilton, J., not sitting.