Epstein v. Farr , 112 Miss. 530 ( 1916 )

Stkes, J.,

delivered the opinion of the court.

Louisa G. Epstein, appellant here filed a bill in the chancery court of Pike county against Mrs. Ella D. Farr as administratrix of the estate of A. S. Farr, alleging that during the lifetime of the said Farr complainant had rented to him a storehouse for a period of one year at- a rental of thirty-five dollars a month, and that there was due and owing to her at the time of the. death two months’ rent, or seventy dollars. Complainant’prayed that this claim he declared a preference claim, and that the administratrix be required to pay the same in full; out of the ■ proceeds of sale of the stock of goods, before paying any general creditors. The lower court denied her prayer for relief, from which decree this appeal is prosecuted.

The agreed statement of facts in the case shows that the above amount was due her by the deceased as rental at the time of his death, that the estate was insolvent, and that under an order of the chancery court,, the stock of goods belonging to said estate and in the storehouse of appellant was sold over thirty days before the institution of this suit, and the proceeds of sale are now in the hands of the administratrix. The estate of the deceased had been declared to be insolvent before this suit was instituted. A year’s support to the widow and children had been allowed and set apart for them. The agreed statement of facts also shows that under similar contracts for rent. the deceased was due D. E. Lampton & Co. one hundred dollars for rent and Mrs. A. I. T'eunnison twenty-five dollars for rent, and that the right of recovery of these appellants is controlled by that of the appellant, Epstein. The appellant landlord bases her claim to the rent under section 2851 of the Code of 1906, which reads as follows:

“That no goods or chattels, lying or being in or upon any messuage, lands or tenements, leased or rented for life,’years, at will, or otherwise, shall at any time be liable to ■ be taken by virtue of any writ of execution, or other process whatever, unless the party so taking the same shall, before the removal of the goods or chattels from such premises, pay or tender to the landlord or lessor thereof, all the unpaid rent for, the said premises, whether-the day of payment shall have come or not, provided it shall not amount to more, than one year’s rent; and the party suing out such execution or other process, paying or tendering to such landlord or lessor the rent unpaid, not to exceed one year’s rent, may proceed to execute his judgmnt or process; and the officer levying the same shall be empowered and required to levy and pay to the plaintiff as well the money so paid for rent, as the money due under the process, and when the rent contracted for is payable, not in money, but in other things, the creditor shall pay the landlord the money value of such things.”

It is contended by the appellee that the above section does not give the landlord any lien or preference claim on the goods or on the proceeds of the sale of them, nor give her any preference over other creditors of the estate. It is further contended that if any preference claim or lien existed, then it should have been asserted at least within thirty days after removal of the goods under section 2850, Code of 1906. It is further contended that the only preference claims against the insolvent estate of a deceased person are those set out in section 2113 of the Code of 1906. This question has been expressly settled by this court in favor of .the appellant here in the case of Rice v. Harris, in 76 Miss. 422, 24 So. 880. The facts are quite similar to those in the case at bar. Judge Teeeal in that opinion says:

“By reason of the assignment of the goods by Harris to Slack, under chapter 8, Annotated Code, thereby placing the goods on the demised premises in the hands of the chancery court, so that to distrain it by Rice would be a contempt of said court, has the right of the lessor been destroyed? We think not. The right which the lessor had, unless the assignment had been made, to seize the goods for the payment of his rent, is not available at law, by reason of the assignment, but on that account it is a good foundation for a claim in the chancery court, where the assigned ‘goods are administered, and for a decree there for such claim. If we understand counsel for appellee, they suppose that Rice might have a good claim for the intervention of the chancery court, if he had filed his cross-petition within thirty days from the time the goods were removed from the rented premises. We do not perceive that the removal of the goods from the demised premises affect in any way the rights of Rice. Hirsh was a bona fide purchaser of the goods, and, in his hands, they were not subject to he attached by Rice, whether they were on the premises, or within thirty days from a removal therefrom. Hirsh was a purchaser under the decree of the court, and by this proceeding in court, and under the decree of the court, Rice was precluded from going against the property sold, and for that reason gives him a right to demand of the assignee of the goods the payment of his rent from the money produced by a sale of the property, which the proceeding in the chancery court had precluded him from attaching to pay them.”

In the case at bar the estate was being administered in the chancery court, just as was the estate of Harris being administered in said court by virtue of his assignment.

Reversed, and decree here for appellant.

Reversed.