Tuttle v. Walker , 69 Ala. 172 ( 1881 )

BR1CKELL, C. J.

The single assignment of error is, that the Circuit Court erred in refusing three several instructions to the jury, requested by the appellant. The first was a general instruction, that if the jury believed the evidence they must find for the appellant. The bill of exceptions does not purport to state all the evidence which was introduced on the trial, and in the absence of such statement, it is obvious this court can not affirm there was error in the refusal of this instruction. And the evidence, so far as stated, is conflicting as to material facts. With propriety, instructions of this character can be given only when the evidence as to all material facts is free from conflict. — 1 Brick. Dig, 335, § 3, subd. 2.

The second instruction was not in writing, and for this reason was properly refused. — Hollingsworth v. Chapman, 54 Ala. 7.

The former statute (R. C., §§ 2961-62,) limited the rignt of a landlord to an attachment, to enforce the lien for rent on crops grown on rented premises to two cases: first, where without paying the rent the tenant was about removing the crop-from the premises; second, where without paying the rent the tenant removed the crop or any part thereof. The present statute materially enlarges the remedy, and the landlord can pursue it, when the rent becomes due and the tenant on demand fails to pay it, though the tenant has not removed or contemplated the removal of the crop. — Code of 1876, §§ ■ 467-73. The purpose of the present statute is to render the lien firmer, more stringent, and a- more effectual security to the landlord for the payment of rent and for the payment of advances he may make the tenant. It can not be affirmed as a general rule, as is affirmed in the third instruction requested by the appellant, that the mere consent of the landlord to a removal of the crop from the rented premises, is a waiver of the lien. Much must ■depend upon the purposes -for which the consent is given. If ■the landlord consents that the tenant should remove and sell the crops, a sale to a bona fide purchaser would operate a destruction of the lien. But if he consented to the removal, that the products should be better prepared for market, or more, .safely stored, than could be done on the rented premises, it would be unjust to infer that he waived, or intended to waive, the lien. Whenever a waiver of the lien is claimed from the ■consent of the landlord to the Removal of the crop, all the attendant circumstances must be considered, and from them the inference drawn, whether there was an intention to waive the lien, or whether strangers dealing in good faith, upon the possession of the tenant separated from the possession of the rented premises, have been misled. As a general proposition, the third instruction is too broad, and was properly refused.

Affirmed.