Wilson v. Stewart , 69 Ala. 302 ( 1881 )

BRICKELL, O. J.

The original complaint was in case, joining a count in trover. The amended complaint proposed to add the common counts in assumpsit, thereby causing a misjoinder, rendering the entire complaint subject to demurrer. For the rule of the common law remains unchanged, that counts ex contracta and counts ex delicto can not be joined.— Whilden v. M. & P. Nat. Bank, 64 Ala. 1. It may be the better practice would have been to put the defendant to his demurrer, but as that would of necessity have been sustained to the entire complaint, striking the amendment from the files is at most error without injury.

. The relation of landlord and tenant, with all its rights and incidents, existed between the appellant and Tillery by force of the statute. — Code of 1876, §3474. As an incident to the relation, a lien on the entire crops grown on the rented premises, resulted to the appellant for the share of the crops it was agreed that he should receive as rent. ITe had also a lien on the crops for such advances as he made Tillery to aid in the cultivation of the crops, and for any balance due him from Tillery for advances made during the tenancy of the preceding year. These liens were capable of enforcement by attachment at law, on the happening of any of the contingencies expressed in the statute. Code of 1876, §§ 3467-78. The lien is not property, or a right of property. It is a statutory, legal right to charge the crops with the payment of the rents, or advances, or both, in priority to all other rights or liens, the property and right of property remaining in the tenant. — Stern v. Simpson, 62 Ala. 194. If with notice of the liens, the appellee sold and converted the crops, depriving the appellant of, or rendering unavailing the remedy by attachment to enforce them, an action on the case can be supported for the recovery of the resulting damages. Hussey v. Peebles, 53 Ala. 432; Lavender v. Hall, 60 Ala. 214 Lomax v. Le Grand, Ib. 537. Notice of the liens must, however, be traced to the appellee. The general property in the crops residing in the tenant, he could make a bona fide sale to a purchaser without notice, which would prevail over the liens. This is an infirmity of the liens by the words of the statute creating them. The fatal defect in the case of the appellant, in all its aspects, is that the appellee sold the cotton and disposed of the proceeds of the sale, without any notice of the lien now., claimed for advances. Of the lien for rent, notice was-given, but it is undisputed that the rent was paid, and no claim for it is now made in this suit. Against the lien for advances the statute affords the appellee full protection. If there be error in the various rulings of the court below to which exceptions were taken, it is not of injury to the appellant, and it would serve no useful purpose to examine them.

Affirmed.