Sprouse v. Davis

J.Y. Davis, the landlord, sued out an attachment for rent and supplies, complying with the statute with reference to the affidavit and bond, and the writ was issued and levied upon one bale of cotton under chapter 43, Hemingway's Code, sections 2330, 2331, et seq. (chapter 76, Code of 1906, sections 2832, 2833, et seq.) After the levy by the sheriff, the tenant replevied the property under section 2354, Hemingway's Code (section 2856, Code of 1906), and attached to his declaration in replevin a sworn itemized account consisting mainly of work and labor performed, to which the avowry was filed and all the pleadings made up, but the defendant, the landlord, did not file an affidavit denying the correctness of the account attached to and made a part of the affidavit in replevin of the tenant. Upon the proof it developed that Davis, in the latter part of September, 1923, made a contract to rent certain lands to Sprouse, to be worked by him in raising a crop of cotton during the farming year of 1924. Thereafter, in the latter part of November, 1923, Davis, the landlord, sold Sprouse, the tenant, a wagon, the balance due on which was shown to be fifty dollars, and about a week later moved on the leased premises. There were other facts which we do not think it necessary to state here. There was a trial in the justice court, resulting in a judgment for the plaintiff, tenant, and an appeal was prosecuted therefrom to the circuit court, and the case being tried de novo in the circuit court, judgment was entered for the defendant, the landlord, and the plaintiff, tenant, prosecutes this appeal here.

Two points are presented here for decision: First, the tenant, Sprouse, contends that the court erred in permitting the landlord to prove circumstances in denial of the account duly sworn to by the tenant with his declaration because there was no counter-affidavit. This objection is without merit, for the reason that this action is possessory in its nature, one of replevin for the possession of the property instituted by the tenant after the summary writ of attachment had been issued and the agricultural products seized, and the question of account is incidental to the main issue, the right of possession. AmericanSurety Co. v. United States, etc., 76 Miss. 289, 24 So. 388.

Counsel for appellant, the tenant, next contends that there is no lien on the agricultural products raised during the year 1924 for a wagon furnished in November, 1923; in other words, that this is a carrying forward of the lien for supplies furnished in 1923 and enforcing same on the products raised in 1924, and relies on the case of Lumbley v. Gilruth, 65 Miss. 23, 3 So. 77, in which case it developed that the landlord furnished supplies during one year which were not paid by the crop of that year, and undertook to enforce the lien upon the second ensuing year for the balance carried over, and this court held that there was no lien on the second crop for rent and supplies furnished in the making of the first crop.

To state the holding is to differentiate the case. The wagon in this case was furnished in contemplation of the contract already made for the working of the land during the year 1924, and within a very few days the tenant moved on the leased premises, and it is not contended that a lien would not exist for the wagon so furnished during the year 1924. It is a well known fact that much of the farming in this country is done in the fall before Christmas, in the preparation of the lands by plowing and fertilizing same, and that supplies thus furnished for that crop are a lien upon the agricultural products thus raised, and this is not a case of undertaking to extend a lien existing upon one crop to another.

The court below so held, and we think the result reached correct.

Affirmed.