Carmen & Begg v. Alabama National Bank , 101 Ala. 189 ( 1893 )

STONE, C. J.

Section 3069 of the Code of 1886 declares that “The landlord of any storehouse, dwelling-house, or other building, shall have a lien on the goods, furniture and effects belonging to the tenant for his rent, which shall be- superior to all other liens, except those for taxes.” This certainly secures a lien of a very high order; a lien which exists, and can be enforced, indepently of the remedy by attachment given in section 3070 — Westmoreland v. Foster, 60 Ala. 448; Union W. & E. Co. v. McIntyre, 84 Ala 78, 4 So. Rep. 175. See also Espalla v. Touart, 96 Ala. 137; 11 So. Rep. 219.

We hold that the remedy by attachment is cumulative, and that a resort to that writ for the enforcement of the matured part of the rent notes, is no bar to the present suit. — 3 Brick. Big. 804, §97. The averments of the bill make a case where equity alone can administer the proper relief, and enforce the paramount lien which it asserts.

It is claimed for appellants that because the bill is silent as to the. disbursement of the proceeds of the attached property, as ordered by the city court, we can not know that the indebtedness for rent was not ordered to be first paid ; and, hence, that we can not know that the complainant was aggrieved or injured by that order. It is contended that for this omission the injunction should be dissolved. This is scarcely a full presentation of the case, as made by the bill. It does appear by necessary implication that seven of the rent notes, aggregating $350, were not in suit, and, consequently, they were not before the city court, and could not have been considered in the order then made.

The bill, in its fourth paragraph, needs amendment. It should have set forth the substance of the order of distribution made by the city court. We will, however, make no order touching this matter. Unless the amendment is seasonably made, the chancery court will make the proper order.

The decree of the chancellor is affirmed.