Mooney v. Hough , 84 Ala. 80 ( 1887 )

STONE, C. J.

There are two statutory provisions which shed some light on the present suit. The first is found in section 3064 (3474) of the Code of 1886. That section -declares that “the relation of landlord and tenant, with all its incidents, and to all intents and purposes, shall be held to exist between” tenants in common falling within its provisions. Section 3056 (3467) of the same Code gives alien to the landlord of agricultural lands, not only for rent, but “for advances made in money, or other things of value, either by him 'directly, or by another at his instance and request, or for which he became legally bound or liable at or before the time such advances were made, fox the sustenance or well being of the tenant or. his family, or for preparing the ground for cultivation, or for cultivating, gathering, saving, handling, or for preparing the crop for market.” In considering this statute, we, in Cockburn v. Watkins, 76 Ala. 486, said: “These are comprehensive words, and would embrace everything useful for the purposes enumerated, dr tending to the substantial comfort or well being of the tenant, his family, or employees about the service.” See, also, Thompson v. Powell. 77 Ala. 391.

The case of Marcus v. Robinson, 76 Ala. 550, and Hamilton v. Mass, 77 Ala. 283, and many other similar cases, were controlled by a very different statute. — Code of 1876, §§ 3286 et seq. — not now of force. See, also, Tyson v. P. S. & C. Asso., 57 Ala. 323; Watson v. Auerbach, Ib. 353; McLester v. Somerville, 54 Ala. 670; Flexner v. Dickerson. 65 Ala. 129; Schuessler v. Gaines, 68 Ala. 556.

The other statutory provision — Code of 1886, §§ 3075 (3479) et seq. — embraces all “persons farming on shares, or raising crops by joint contributions, in such manner as to make them tenants in common of such crops.” In reference to these the statute declares that each shall have “alien upon the interest of the other on such crops for any balance due for provisions, supplies, teams, materials, labor, services, and money, or either, furnished to aid in cultivating and gathering such crops, under contract, or, furnished when the interest of such crop requires it in case of a failure of either to contribute the amount and means as agreed upon by the parties.” The next section declares that the.remedy provided for the enforcement of the landlord’s'lien shall be applicable to this.

“Provisions,” “supplies,” “materials,” “labor,” “services,” “money,” are very comprehensive words. “Money” is a word of large significance; and “materials,” used in the connection in which it is found, is itself very comprehensive. So, the word “supplies,” noun .of the verb “to supply,” has a very large meaning. “To furnish with what is wanted; to afford or furnish a sufficiency for.” — Webster’s Die. “To furnish with anything that is wanted; to provide.” — Worcester’s Die.

We are not inclined to give to the language employed a narrow or technical meaning; but, treating the words, “cultivating and gathering,” as the synonym of producing and utilizing, and, at most, expressing an object to be accomplished, we regard the words, “provisions, supplies, teams, material, labor, services and money,” as intended to embrace all the agencies, appliances and helps, which are .necessarily or customarily employed in the attainment of such object. In these are implied, not only field labor, its wages, food and raiment, but indoors labor, for the preparation of the same. All can not do field labor; and these indoors, auxiliary services and servitors must be provided for, and taken into the account. Taken altogether, we think the' statute embraces, .and was intended to embrace, the preparation of the land, for that is part of the cultivation. It also embraces the working of the crops, their harvesting, and all else connected with their preservation and utilization. And the advances may be made directly, or through another, if done on the responsibility of him who claims a lien for its repayment.

We hold that the case we have in hand falls under tl^e influence of the statute last above commented on, and that each of the articles claimed, so far as the record discloses, is within the purview of the statute. All the articles appear to have been furnished at Mooney’s instance, and none of them show on their face that they were outside of the purview of the statute, as we have defined it. If some of them were intended for persons or objects not, in fact, of the classes enumerated above, that, in the absence of notice, should not impair the rights of him who furnishes or advances. It was not incumbent on Hough to see to it that advances, legitimate in kind, made by him at Mooney’s request, were faithfully applied by the latter. This statutory lien, however, has a limit. Advances having no reference to the production or utilization of the crop, nor to the labor, instrumentalities, or auxiliary influences connected therewith, are not within the statute, and can not be enforced by the remedy here invoked.

The present proceeding was instituted under the statute, Code of 1876, §§ 8521 el seq.; Code of 1886, §§ 3263 el seq. That statute, while it confers both a right and a remedy for its enforcement, is nevertheless so beneficial in its policy and tendency — so promotive of speedy and inexpensive justice— that we are not inclined to give it a severe, or technical construction. Still, as the statute confers both the right and the remedy — a remedy summary in its nature — the petition must set forth enough to show that the Probate Court has jurisdiction of the suit. It is not every case of tenancy in common of matured crops that the statute is intended, or framed to reach. It must be “corn, cotton, or other pro- • duce, revised and made by persons in such manner, as to make them joint owners or tenants in common therein,” and it must be matured, and either gathered, or ready for gathering. The statute provides for every case, where the matured crop was raised and made in such manner, as to make the persons raising it tenants in common, and it reaches no other case. The facts which show this state of case must be set forth in the petition. And if there be a claim for advances, the amount should be stated, with a general description, so as to bring the articles advanced within one or more of the classes enumerated in §§ 3056, 3064 and 8075, Code of 1886. These sections specify the cases of landlord and tenant, and tenants in common, to which the remedy invoked in this case is adapted, alike for partition and for the recovery of advances.

We would not require much technicality in the frame of the petition. Still, enough must be averred to show that there had been a contract under which the crops were grown, which contract constituted the parties tenants in common; and the facts out of which the relation springs must be briefly averred. This is done by stating the substance of the contract, and that the crop was raised and made under it. It is perhaps to be lamented that -in providing this very salutary remedy, a brief form of petition was not furnished, and declared to be sufficient. We feel forced to hold that the demurrer to the petition ought to have been sustained.

’In charging the jury, the court should not refer to them the ascertainment of any principle of law; for instance, whether the landlord had a lien for a particular article advanced. The legal feature of the inquiry he should have decided himself, leaving to them only the ascertainment of the facts. But, as the present record fails to show any article advanced, for which the statute does not give the advancing landlord or co-tenant a lien, no error was committed of which appellant can complain. The legal questions involved in the charges the court should have decided in favor of Hough, and hence no injury could have resulted to Mooney from the simple error of submitting them to the jury. — 1 Brick. Dig. 337, § 26; Jones v. Pullen, 66 Ala. 306.

There was no error in allowing the jury to have with them in their retirement, the copy-accounts, used by witnesses in giving their testimony. Hirschfield v. Levy, 69 Ala. 351. The same object could have been accomplished by having the jury make memoranda of the accounts, or of the items composing them, as deposed to by the witnesses. In the absence of one or the other of these methods, it would be very difficult for the jury to reach any thing approximating correct conclusions.

We think defendant’s plea of set-off ought to have been allowed, as partial defense to the claim for advances. — Code of 1886, § 2678, and note.

Proof of the contents of written orders should not have been received, without laying the proper predicate for the admission of such testimony. If the paper is presumed to be in the possession of the party offering the testimony { or if it is shown to have been in his possession, then the duty is cast on him of proving its destruction or loss, or otherwise accounting for its absence, before lie will be allowed to prove its contents. If the paper is actually or presumptively in tbe custody of tbe adversary, tben a notice to produce must be given, to let in 'secondary evidence. If a stranger has tbe paper and resides in tbe State, tben it is to be brought in by subpoena duces tecum, if tbe trial be in a common law court.

There is nothing in tbe other assignments of error.

When tbe case returns to tbe Probate Court, it will be necessary to amend tbe petition, unless tbe parties agree to try on tbe pleadings as they now appear. It would seem that only tbe question of set-off need be further litigated, unless new and varying facts are brought out.

Beversed and remanded.