Baum v. Bell , 28 S.C. 201 ( 1888 )

The opinion of the court was delivered by

Mr. Chief Justice Simpson.

The defendant, respondent, was a tenant, for the year 1886, on a plantation in Kershaw County, known as the Mobley place, and which, as it appears, belonged to one Mrs. M. A. Mobley. The contract of tenancy, however, which was in writing, was made with one George W. Barnes, who is styled in said contract as lessor. The rental was $825, due on October 1,1886, to secure which a lien on the crops to be grown on the place during that year was given. This contract, some time before it fell due, was transferred by Barnes to the-appellant, Baum, who, on October 18, the rent not having been paid, upon affidavit made, obtained from the clerk of the court for Kershaw County a warrant of seizure, which being placed in the hands of the sheriff, cotton sufficient to pay the rent was seized, but the defendant entering into bond as provided by law, this cotton was restored to him ; Avhereupon the appellant commenced action for the recovery of the said rent, to Avhich respondent ansAvered, claiming that Barnes did not own the land rented, and that in making the contract, he Avas mei-ely the agent of Mrs. Mobley, to whom the plantation belonged, and from whom he, the respondent, had rented the land for several years anterior to 1886, all of Avhich the appellant kneAv before the assignment of the contract to him.

In the meantime, and before the case on its merits came to a hearing, the respondent moved before his honor, Judge KershaAV, to set aside the attachment or warrant of seizure on tAVo grounds: 1st. Because of irregularity, inasmuch as the affidavit upon Avhich it was founded was insufficient. 2nd. Because the Avarrant Avas improvidently issued, the allegations in the affidavit being untrue. His honor held that the affidavit was sufficient, and declined to vacate the warrant on the grounds specified, but did set it aside on the ground that the indebtedness of the respondent, Bell, Avas to Mrs. Mobley a.nd not to appellant, Baum, holding that Baum had knoAvledge of this before the contract of rent had been assigned to him, and that Barnes had no authority in the premises.

Baum has appealed upon two grounds: 1st. Because it was error for the Circuit Judge to set aside the Avarrant on grounds not raised by the defendant in his notice of motion. 2nd. Because, if they had been raised, they Avere insufficient. The respondent gave notice of appeal also, on the ground that, his honor erred in holding the affidavit, upon which the clerk issued the warrant, to be sufficient.

Assuming that the exception of the respondent is in substance a notice that he would undertake to sustain the judgment below on a ground different from that upon which the Circuit Judge rested it, we think the appeal of both appellant and respondent should be sustained, which results in an affirmation of the judgment below.

The respondent’s motion before his honor, Judge Kershaw, to set aside the warrant of attachment, was based upon the two grounds ordinarily presented in such motions, to wit, irregularity and an improvident issuance of said warrant; the first being always an attack upon the sufficiency of the affidavit upon which the warrant has issued, and the second upon the truthfulness of said affidavit. His honor declined to vacate the warrant upon either of these grounds, but went, as it seems to us, into the merits of the case, which case was then pending, the appellant having before this commenced action against the respondent for the recovery of the rent, the cotton seized having been returned to respondent under bond. The defence of respondent to the complaint of appellant, set up in his answer thereto, was the precise grounds upon which his honor vacated the attachment, to wit, that the rent was really due to Mrs. Mobley, to whom the land belonged; that Barnes had no authority in the premises, and had no right to assign the rental contract to the appellant; all of which the appellant knew, and, therefore, that the complaint should be dismissed. These were the issues in the pending action, and it appears to us that it was error in the Circuit Judge to hear and determine these issues, in advance of the trial, upon a motion at chambers, made to vacate the attachment upon grounds altogether different, to wit, irregularity and improvidence, which were alone mentioned in the notice, and each of which has a well defined signification. The appellant, it seems to us, has good ground to complain that he was taken by surprise as to this matter.

But, then, when we come to look at the affidavit, we think it is obnoxious to the charge of irregularity, being insufficient, because not in full compliance with the act in such case provided. The original act required that it should be made to appear to the satisfaction of the clerk by affidavit, that the debtor was about to sell or dispose of his crop, or in some other way was about to defeat the lien. Section 2398, General Statutes. The subsequent amendment of 1885 (19 Stat., 429) does not dispense with these requisites, but simply provides “that the affidavit and statements to be used to obtain such warrant, shall conform, as nearly as may be, to the practice regulating the issuing of warrants of attachment under the code of procedure. * * * And that the debtor should have the right to move to vacate said warrant of seizure for any of the causes which would be sufficient to vacate an attachment issued under the code of procedure.”

Now, the practice regulating the issuing of attachments pro-vided for by the code, in so far as the affidavit and statements are concerned, is that where the attachment is sought upon the ground that the debtor has assigned, disposed of, &c., or is about to dispose of his property, &c., the affidavit must not be founded simply upon information and belief, but it must state the facts upon which this belief is founded, and, also, the facts must be of such a character that, if true, they would in law be sufficient prima facie to establish the belief entertained. Smith & Melton v. Walker, 6 S. C., 169; Brown v. Morris, 10 Id,., 469; Ivy v. Caston, 21 Id., 588; Claussen v. Fultz, 13 Id., 478. It is to the practice under the principles decided in the cases just referred to, that we understand the amendment of 1885 refers, when it requires the affidavit and statements to be used in obtaining a warrant of seizure in agricultural or rental liens to conform as nearly as may be to the practice regulating ordinary attachments under the code. In other wmrds, the amendment, in substance, declares that the affidavit in an agricultural warrant must contain something more than a mere statement of information and belief — it must go further, and state the facts upon which the belief is founded, and these facts must be of a character which, if true, would be sufficient prima facie to warrant the belief.

We do not think the affidavit here conforms to this rule. The affiant does not found his belief upon information even, but he states, “that he has reason to fear, and does believe, that the debtor has disposed of, or is about to dispose of, his crops, the effect of which would defeat his lien.” It will be observed that here is no positive allegation of either a purpose on the part of the respondent to dispose of his crops to defeat the lien, or of an act of disposition for that pui’pose. It is nothing more than the allegation of a fear and a belief that such purpose and act might take place, which, in themselves, would be insufficient. And when the fact upon which this fear and belief is founded is considered, the want of conformity to the practice required by the amendment of 1885, supra, as settled in the cases supra, is still more apparent. That fact is, that the respondent had said to affiant that he had the sum of $325 in his pocket for the payment of the rent, but that he would not pay it until he was required by law to do so. We do not see how this could warrant the belief or the fear that respondent was disposing of, or was about to dispose of, his crop over which the lien existed, with the view to defeat the lien. An intention to dispose of the crop, or an actual disposition of it for the purpose of defeating the lien, one or both, constitute one of the legal grounds upon which the warrant of seizure may issue; but we cannot see how a statement by the debtor, that he has money enough in his pocket to pay the lien, but that he would not pay it until required to do so by law, affords any proof that he either intended to dispose of, or had disposed of, any portion of said crop for any purpose. Nor is it sufficient to produce the belief that the debtor intended to defeat the lien in any other illegal way, unless the money in the pocket of the debtor were the proceeds of the crop. (This, however, was not the fact.) The appellant had no lien on it, and the refusal of the debtor to use it in the payment of the rent, in no way affected the lien of the rental contract on the crops. The language used by the debtor amounted to a denial of the debt, and not a threat to defeat it in the meaning of the act.

We think the warrant of seizure should have been set aside on the ground of the insufficiency of the affidavit; and upon that ground,

It is the judgment of this court, that the judgment of the Circuit Court be affirmed.

Mr. Justice McGowan concurred.