Hudson v. Wright , 1 Ala. App. 433 ( 1911 )

PER CURIAM.

This action is by the appellee against the appellant, some of the coiints claiming for a conversion of two bales of cotton, corn, and cotton seed, claimed to belong to the plaintiff, and others alleging that the plaintiff had a lien on the cotton for services in making the crop, and that defendant, by taking said cotton under attachment proceedings against the tenant in chief, deprived plaintiff of his right to' enforce his lien against the same.

The evidence is without conflict that the defendant owned the land on which the cotton, etc., was raised; that the land was rented by him for the year 1906 to J. T. Wright; that the plaintiff worked a crop on said land under an agreement between him and said J. T. Wright, by which said Wright furnished the land, teams, etc., and the plaintiff furnished the labor, and was to receive one-half of the crops raised; that the two bales of cotton, etc., in question, were levied upon under an attachment sued out by the defendant against said J. T. Wright, for rent and advances made by the defendant, as landlord, to said J. T. Wright.

It was also in evidence that the plaintiff had previously sold two bales of cotton, of the crop raised by him, and out of the proceeds he retained $55.80, and placed $53.04 to the credit of J. T. Wright.

The court refused to allow the defendant to prove that the cotton, etc., received by him through the attachment proceedings was not sufficient to pay the amounts due him a.s landlord, for rent and advances, and rendered judgment in favor of the plaintiff.

Under section 4743 of the Code of 1907, and the numerous decisions thereon, the contract between J. T. Wright and the plaintiff created the relation of hirer and hireling, and the laborer has no property or interest in the crop, save that ho has a lien on the crop for “the value of the portion of the crop to which he is entitled.”—Foust v. Bains Bros., 167 Ala. 115, 52 South. 743.

Section 4734 of the Code of 1907 provides that “a landlord has a. lien, which is paramount to, and has preference over a.ll other liens, on the crop grown on rented lands for rent for the current year, and for advances made in money or other thing of value,” etc.,

The plaintiff, not owning any part of the crop, could not recover in trover; and it is equally clear that under the counts claiming for interfering with his lien on the crops for his hire, he could not recover against one who had subjected the same to a lien which was superior to his. The fact that section 4743 of the Code gives to the laborer’s lien “the same force and effect, and shall be enforced in the same manner, and under the same conditions, and in the same cases as the lien in favor of the landlord,” does not contravene the positive provisions of section 4743, making the landlord’s lien paramount to all other liens.

Pleas 3 (as amended) and 5 set out the facts showing the relation of hirer and hireling between said J. T. Wright and plaintiff, and that defendant’s lien was paramount to that of plaintiff, and the court erred in sustaining demurrers to said pleas. Counts 5 and 7 of the complaint also set out the contract, showing a contract of hire.

In addition to all this, the evidence shows that the plaintiff made only four bales of cotton, and that he had received two, and sold them. The fact that he placed a portion of the purchase money to the credit of J. T. Wright is not explained; it may have been in payment of advances received by him from Wright, properly payable out of his portion of the crop.

Under the law and the facts as stated, the court should have allowed proof of the fact that the property levied on was not sufficient to pay the rent and advances due the landlord, and should have rendered judgment in favor of the defendant.

The case of Hudson v. Wright, 164 Ala. 298, 51 South. 389, 137 Am. St. Rep. 55, does, not contravene anything that has been said. In that case no issue was raised as to Wright’s not being a tenant, but- merely a hireling; but, on the contrary, the pleading represented him as a subtenant, in which case he would have an ownership in the property itself, and the decision of the court was that he should have had notice before his property was taken.

• In this case it is shown distinctly that the plaintiff did not own any part of the crop, but, if he had anything, it was only a lien for an amount of money, which was inferior and subject to the paramount lien of the landlord. It is not the law that every one holding a paramount lien on property must bring in all inferior lienholders, in order to enforce his lien. Even in equity, while a second mortgagee may be made a party to foreclosure proceedings, yet he is not a necessary party.—Cullman w. Batre, Ex’r, 2 Ala. 415, 420; Forrest’s Ex’rs v. Luddington, 68 Ala. 1, 14; Walker v. Bank, Mobile, 6 Ala. 452, 460; Hartwell & Wilkins w. Blocker, 6 Ala. 581, 587; Grawlee w. Lamkin, 120 Ala. 210, 218, 24 South. 756. The statute makes no provision for bringing in subsequent or inferior lienholders, and there is no process by which a court of law could adjust the equities between them.

In addition to what has been said, as we have remarked before, in substance, in order for the plaintiff to recover under the counts setting up a lien, it would be necessary to prove how much was due on his lien, and that it was superior to the lien of the defendant. The latter he could not do, and the former he did not do; but, on the contrary, the evidence tends to show that whatever lien he had had been satisfied.

It is unnecessary to consider other questions raised on the pleading.

The Judgment of the court below is reversed, and the cause remanded.

Reversed and remanded.

Note. — The foregoing opinion was prepared by Mr. Justice Simpson, of the Supreme Court, before the transfer of the case to this court, and was adopted by this court.