Pitts v. Baskin

^* Headnotes 1. Landlord and Tenant, 36 C.J., Section 1545 (Anno); 2. Pleading, 31 Cyc., p. 335; 3. Pleading, 31 Cyc., p. 322; 4. Pleading, 31 Cyc., p. 322. Mrs. Mamie L. Pitts filed a bill in the chancery court of Sunflower county, against E. Baskin, tenant, and a number of cotton buyers, seeking to recover from the former her rent for the year 1923, and from the latter, cotton buyers, the value of cotton raised on leased premises sold to them by Baskin without her knowledge and consent, alleging that she had a landlord's lien on the cotton so sold for the rent of the lands described in the bill for said year.

The lease contract exhibited with the bill shows that the lands were leased by the complainant to the defendant for the years 1922, 1923, and 1924, for the sum of two thousand dollars per annum, and the rent note for the year 1923 was exhibited with the bill.

The bill alleges that early in the year 1922 Baskin was unable to obtain "furnish" or supplies with which to make a cotton crop, and Mrs. Pitts agreed with Baskin and the Bank of Indianola that the tenant might execute a trust deed to the bank on his personal property and the crop for 1922, and that the landlord would waive her rights for that year in favor of the bank in order that the bank might be paid the money it furnished Baskin with which to make the crop before the rent for that year was paid; and it is further alleged that the waiver was in favor of the bank, and was to apply to the bank lien, and that she had no intention of waiving her landlord's lien to any other person whomsoever. Under this arrangement the bank took the trust deed. The bill alleges that in 1922 the debt due the bank was paid by the tenant, and likewise that the rent note due the landlord was paid by the tenant.

It is further alleged that at the beginning of the year 1923, tenant again applied to Mrs. Pitts, the landlord, for aid in securing the furnish for making a crop in 1923. The same arrangement was entered into between the tenant, landlord, and Bank of Indianola for the year of 1923, and the landlord again waived her rent for that year in favor of the bank to the extent of the money advanced by it for making the crop in that year, but that this waiver extended to the bank, and the bank alone, and not to any one else, and did not authorize Baskin to sell any portion of the crop in 1923 to the Bank of Indianola or any other person.

The bill further charges that a good portion of the cotton raised on her place was sold by Baskin and the proceeds paid to the defendant T.M. Pitts for the rent on his land, and that other cotton raised on said place was sold and placed to the credit of the notes to a larger extent than was applied to the debt of that cotton of T.M. Pitts, and that she was entitled to have Pitts contribute equally in payment of the bank's indebtedness; that there was sufficient cotton raised on both places to pay the indebtedness due the Bank of Indianola and the rent on both places for the year, 1923; that Baskin failed and refused to pay rent; and that Baskin had sold the cotton to the various cotton buyers and placed the money derived from such sale of said cotton raised on her land in the bank of Sunflower to the credit of his wife. Written in the trust deed, or in the blank space thereon, given to the bank, for the year 1923, appears the waiver, which is as follows:

"We hereby waive all rents until the notes listed below are paid, also any lien any of us may have on the above stock and personal property. [Signed] T.M. Pitts and Mrs. M.L. Pitts, by W.T. Pitts, Agent."

The body of the trust deed described the notes mentioned as being due November 1, 1923, one for six hundred and eighty dollars and the other for two thousand four hundred seventy-seven dollars and fifty cents. To this bill W.R. Humphrey filed a demurrer and assigned as causes:

"(1) There is no equity on the face of the bill as against this defendant; (2) the bill shows on its face that the complainant has waived any lien she might have had on the cotton alleged to have been purchased by this defendant; (3) the bill shows on its face the complainant is estopped to assert any lien, etc.; (4) the bill shows on its face that the complainant held out the defendant Baskin, the alleged tenant of complainant, who it is alleged sold the cotton to this defendant, for which it is sought recovery against this defendant, as her agent in the selling of said cotton, and that she is now estopped to deny such agency; (5) the bill shows on its face that the defendant Baskin, the alleged tenant of complainant, who it is alleged sold the cotton to this defendant, for which it is sought recovery against this defendant in the selling of said cotton, did so as the agent of complainant, acting in the scope of his agency."

The only language in the bill from which there could be any deduction or inference of agency is as follows:

"And produced a crop on said land, paid the Bank of Indianola his furnish account, and paid his rent for the year 1922 both to T.M. Pitts and your complainant, after he had paid the Bank of Indianola the amount due it for its furnish to him."

The chancellor sustained the demurrer, the complainant declined to amend further, and thereupon the bill was dismissed.

The written waiver which we have copied above is not a general waiver, but one which postpones the payment of the landlord's rent until certain specific notes described in the deed of trust on which the waiver was written were paid, and no right was vested in the Bank of Indianola to purchase the cotton raised on the leased premises, and, if no right accrued to the Bank of Indianola, certainly others not parties to that contract could not claim any rights thereunder.

We have searched the bill in vain to find any language which would indicate that the landlord permitted the tenant to sell cotton during the year of 1922, or that there was any express or implied authority so to do, and we fail to find any language in the bill justifying any idea of any kind of agency vested in the tenant by the landlord. The simple statement is that he paid the rent for the year 1922. It is not alleged whether he paid it with money or cotton or corn or in some other manner. No inference can be indulged, as the demurrer confesses the statements alleged in the bill to be true.

We could as well indulge the presumption that the tenant paid the rent for the year 1922 in cotton, as to indulge the presumption that he sold the cotton himself and paid the rent in money. A demurrer does not admit conclusions or inferences; it may not itself be based upon any inferences or conclusions arising upon a bill, but only upon the facts therein stated.Griffin v. Dogan, 48 Miss. 22.

Reference is made to the case of Judd v. Delta Grocery Cotton Co., 133 Miss. 866, 98 So. 243, but in that case, which was tried out on its merits, an agency was established that Judd, the landlord, had permitted his son to handle the cotton and sell the same, and pay the rent, over a number of years, and this court held that this course of dealing constituted the tenant as agent of the landlord in the sale of the cotton, and therefore the landlord was estopped.

In the instant case, no course of dealing is alleged except that which we have quoted as to the year 1922, and, no allegation of agency being set out in the bill, we cannot assume that such an agency existed upon the allegation which we have quotedverbatim in this opinion, and we do not think the case ofJudd v. Delta Grocery Cotton Co., supra, has any application to the state of facts set out in the bill. We think the demurrer should not have been sustained, and the cause is reversed and remanded, with leave to the defendants to file their answers within thirty days.

Reversed and remanded, with leave to defendants to file answers within thirty days.

Reversed and remanded.