Toler v. Seabrook , 39 Ga. 14 ( 1869 )

McCay, J.

This fund, $890 00, balance of the proceeds of Bray & Clemmons’ crop, is in the hands of the Court for distribution, and is claimed by three parties. First, by Toler, who was the overseer on the plantation. Secondly, by R. N. Reed & Co., factors, who made advances during the year, of provisions, etc., to make the crop, and took a lien under section 1977 of the Code. (This lien was dated 31st May, 1867. Proceedings were begun under it 25th May, 1868.) Thirdly, by Seabrook, administrator of Dawson, who owned the land, and who claimed, as rent, the value of thirty-five bags of cotton and five hundred bushels of corn. This amount, as appears by written agreement, dated 3rd May, 1867, Bray & Clemmons agreed to pay to Seabrook, for “ rent of the land, (eleven hundred acres,) together with the mules, stock, farming utensils and gear belonging to Seabrook, now on said place.” These two items of rent to be the “first lien on the crops, and to be first taken from the same.” No specific day was fixed for the payment of the rent. A distress-warrant was obtained by Seabrook. It was issued sometime in December, 1867, and in the affidavit, there was no charge that the defendants were moving the property from the place, though the evidence showed that such was the fact.

We see no ground for the interference of Toler. True, he has attached, but it is clear his claim would yield to the others, as they both have written liens, while he has none. His claim, it will be observed, is before the adoption of the present Constitution, providing that laborers shall have a lien, and no question, therefore, arises in this case under that provision. At common law, and by previous statutes, he had no lien or preference.

The dispute is really, here between Seabrook, the landlord, and Reed & Co., the factors; both have liens as provided by law, and both have reduced their liens to writing. Which has the preference ?

1. We think it clear that, by the Code, sections 2260 and 2263, the lien of the landlord, upon the crop, is superior to all other liens. As to other property than the crop, the lien only attaches from the levy of the warrant, but as to the crop, it lias a preference over all other liens.

In this case, the landlord has reduced his lien to writing and it is older than Reed’s lien by a week or two.

2. Reed’s lien dates from the time it was given. It arises under the Act of 1866. Code, sec. 1977. Several questions have been made in this case under this Act, as to notice, and the general effect of the liens there provided for. But, as we hold the landlord’s lien of higher dignity than any other, so far, at least, as the crop made is concerned, we do not decide these questions, except to say that this (Reed’s) lien, by a fair construction of the statute, attaches from the advance. What is its effect as to preference, and how far it must be notified to the world, to make it notice, we do not decide.

3. It is, however, objected to the landlord’s claim in this case, 1st, that, being payable in specifics, a distress-warrant will not lie for its collection. 2nd, that, having been issued before the rent was due, it is irregular. 3rd, that the thirty-five bales of cotton and five hundred bushels of corn, being for the use not only of the land, but for the mules, stock and farming utensils on the place, it is not properly rent, and a distress-warrant is not the proper remedy. We do not think any of these objections good.

By the common law, it is not necessary that the rent shall be payable in money, to sustain a distress-warrant; anything certain is sufficient. Taylor’s Landlord and Tenant, section 369. It may be money, labor, chattels, etc. Our statute, Code section 4010, makes no restriction. If the plaintiff can swear to the sum due, that is sufficient. In this case, the agreement is for a specific number of pounds of cotton of a certain description, and five hundred bushels of corn. Nothing is to be supplied but the price of the articles, and we see no l’eason why the plaintiff may not distress for what it is worth. If he claims too much, the defendant can replevy. Code, section 4012.

4. Nor is the fact matei’ial that the defendant was to have not only the use of the land, but the mules, utensils, etc., on the place.

There is hardly ever a contract of writing, in which the use of some personal property is not included. The main thing is the rent, the use of the other things ai’e mere incidents. It is still rent, and a distress-warrant will lie. Taylor, sections 17 and 18.

5. Was the distress-warrant issued prematurely ? There was no fixed day for the payment of the corn and cotton agreed upon. It was agreed, however, that it was to be paid out of the crop — to be a superior lien, and to be first taken from the same. We think a fair construction of the agreement is, that the rent was due in a reasonable time after the crop was gathered. As it was to be first taken from the crop, it would be due as soon as the crop was in a condition to take it. This warrant was issued in December, 1867. At that time, as the proof shows, the crop was gathered ; it was not, therefore, too soon.

6. It was further contended, in this case, that, as the proof showed, the rent reserved of thirty-five bags of cotton and five hundred bushels of corn, was, in fact, more than half the crop actually made, the lien of the landlord did not obtain, and section 2263 of the Code is invoked to support this position. We do not say what would be the effect on the dignity of the landlord’s lien, of a rent reserved in kind of a share more than half the crop. It is sufficient, now, to say this is not such a case. This is not a renting for a part of the crop. Clearly that section refers to cases where the landlord is to receive a share of the crop — a certain proportion — an uncertain amount. This is not such a case.

On the whole, we think the Court below was right, and we affirm the judgment.