Governor v. Davis , 20 Ala. 366 ( 1852 )

CHILTON, J.

Tbe only question in this case is, whether a sheriff who levies an execution upon a crop grown on rented premises, after it has been removed from tbe premises and deposited in a warehouse for shipment on account of tbe tenant, and subsequently levies an attachment for tbe rent at tbe suit of tbe landlord upon tbe same property, is bound, upon tbe sale of such crop, to apply tbe proceeds first to tbe payment of tbe rent.

There is nothing in this cáse showing that there was any collusion between tbe creditor whose execution was levied, and tbe tenant, or that at tbe time of tbe levy, either the execution creditor, or tbe sheriff, bad notice that tbe cotton levied on was grown upon rented premises, or that there was rent due to tbe landlord. Tbe tenant, himself, removed tbe cotton, and after it was removed, tbe execution was levied in good faith upon it. These facts distinguish this case from those relied upon by tbe counsel for tbe plaintiff in error. It is said in Dulany v. Dickerson, 12 Ala. Rep. 601, “that tbe statute gives tbe landlord an effectual means of recovering bis rent, by declaring a lien upon tbe crop, forbidding its removal until tbe rent is paid, and giving tbe right to levy an attachment upon it, wbicb may doubtless be done, though tbe crop may be removed, and is in tbe bands of a purchaser from tbe tenant, if he purchased with knowledge of the lien of the landlord.” In tbat case, the purchaser from the tenant removed the crop, and was informed of the lien, consequently he might well have been regarded as purchasing subject to the lien. In this case, the facts are different: there is no proof showing that the" creditor, whose execution was levied, had notice of the lien at the time of the levy.

The uniform construction placed by the English courts upon the statute of 8 Anne, c. 14, § 1, which is not unlike our own, is, that when the tenant removes the crop off the rented premises, the landlord’s lien is gone. It is supposed that, as the process of attachment is given by our statute to the landlord, by which he may follow and levy upon the crop, the lien is not affected by the removal, as was the case under the English statute. But we think this summary proceeding was not designed to extend the lien, to the detriment of bona fide purchasers without knowledge, either actual or constructive, of the existence of such lien; nor was it intended to overrride other liens bona fide acquired upon the property, and which .attached after its removal from the rented premises. The statute which says, the rent shall be exempt until the same may have been paid, &c., (Clay’s Big. 506, § 6) does not affect the case before us. The rents there referred to, evidently mean the portion of the crop to which the landlord is entitled under the contract to receive as his share, and has no application to a case where the monied rent is reserved, instead of .a specified portion of the crop.

We think the lien of the execution creditor, under the facts of this case, is to be preferred, and it follows that the judgment of the Circuit Court must be affirmed.