Stephens v. Cox

^* Rehearing denied 256 S.W. 643. On May 5, 1921, appellee filed suit against appellant to recover a debt due for rent, and to foreclose his landlord's lien. On the same day appellee sued out a writ of attachment against appellant, on the ground that he was about to dispose of his property for the purpose of defrauding his creditors, and caused the same to be levied upon corn and cotton matured, but not gathered, and upon certain farm implements and three hogs. The property was not replevied. The officer who levied the writ caused the corn to be gathered and the cotton to be picked and ginned, and sold the hogs under order of the court, and paid the proceeds of such sale into court.

On January 11, 1922, appellee filed his amended original petition, wherein he alleged that the property attached, describing the same, was subject to his landlord's lien, and prayed that the same be foreclosed, and also that his attachment lien thereon be foreclosed. The court found that appellant was indebted to appellee in the sum of $236.77 for rents and advances, that the crops levied upon were grown upon the land rented by appellee to appellant, and that the other property was advanced by appellee to appellant to enable him to make a crop upon said land during the year 1921. The court further found that the rented premises were the homestead of appellant during the entire year of 1921, and that all of the property levied upon was exempt from execution, and was of the value of $134.32. These findings of fact are sustained by the evidence.

The court rendered judgment for appellee for his debt and costs, except the expense of gathering said crops, and for foreclosure of the landlord's lien, and also for the foreclosure of the attachment lien. The property being exempt from execution, was not subject to attachment, and it was error to foreclose the attachment lien. But this error was immaterial, inasmuch as the judgment ordered the property sold to foreclose the landlord's lien, and it could work no injury to appellant, if it was also sold at the same time, by the same officer, under the same judgment, foreclosing the attachment lien.

A tenant, residing with his family upon rented land, has a homestead right therein. McCullough v. Call (Tex.Civ.App.) 155 S.W. 718; Brewing Ass'n v. Smith (Tex.Civ.App.) 26 S.W. 94; Wheatley v. Griffin, 60 Tex. 209.

Ungathered crops, growing upon a homestead, are not subject to attachment. Pate v. Vardeman (Tex.Civ.App.) 141 S.W. 317; Coates v. Caldwell, 71 Tex. 19, 8 S.W. 922, 10 Am. St. Rep. 725; Moore v. Graham,29 Tex. Civ. App. 235, 69 S.W. 201. Where one wrongfully levies an attachment upon exempt property, and thereby converts the same to his own use, he is liable to the owner for the value thereof, and cannot offset his debt against the same. Pate v. Vardeman, supra; Craddock v. Goodwin,54 Tex. 583; Cone v. Lewis, 64 Tex. 331, 332, 53 Am.Rep. 767. The law being as above stated, if appellee had not had a landlord's lien on the property attached, the appellant would have been entitled to a judgment against appellee for $134.32, and the same could not have been offset against the indebtedness of $236.77 owing by him to appellee.

Appellant contends that the appellee, by levying the attachment upon the property on which he had a landlord's lien, thereby waived such lien. It was not without difficulty that we arrived at a decision on this point adverse to appellant's contention. It is stated in 24 Cyc. 1248, that a landlord waives his lien by levying an attachment upon property subject to such lien. The only case there cited in support of this proposition is Potter v. Greenleaf, 21 Rawle I. 483, 4 A. 718, which sustains the text. The Rhode Island case cites, in support of the doctrine there announced, Haynes v. Sandborn, 45 N. H. 429, Evans v. Warren, 122 Mass. 303, Libby v. Cushman, 29 Me. 429, Whitney v. Farrar, 51 Me. 418, and Wingard v. Banning, 39 Cal. 543, to which may be added Cox v. Harris, 64 Ark. 213,41 S.W. 426, 62 Am. St. Rep. 187. All of these cases, except the California case, hold that a mortgagee, by causing a writ of attachment to be levied upon the mortgaged property, thereby waives his mortgage lien. These cases hold that the remedy of attachment is inconsistent with the foreclosure of a mortgage lien, and that, when a party has one of two inconsistent remedies, by pursuing the one he thereby abandons the other. These cases rest upon the doctrine that a mortgagee of personal property has the right, upon the maturity of his debt, to seize and hold such property.

No such right exists under the laws of this state. Here a mortgage, though in form a conveyance, conveys no title, but is only a security for debt. Here the levying of an attachment on mortgaged property, and thereby surrendering possession to the officer of the law, would not be to abandon his right of possession, as was held in the cases cited, for he would have no such right of possession. As was said in Byram v. Stout,127 Ind. 195, 26 N.E. 687, the doctrine announced in Evans v. Warren,122 Mass. 303, supra, and other cases of like import, depends upon a mere legal technicality, and is not very satisfactory. The California case above referred to rests upon the ground that the lien of a common carrier depends upon continued possession, and the levy of an attachment was the voluntary surrender of such possession to the officer levying such attachment, and that this constituted a waiver of the carrier's lien.

In the instant case, had appellee sued out a distress warrant, instead of an attachment, there could be no question as to the correctness of the judgment foreclosing his landlord's lien. The landlord's lien is given by law, and does not depend upon the issuance and levy of a distress warrant. Brown v. Collins, 77 Tex. 159, 14 S.W. 173. The only office of a distress warrant is to impound the property during the pendency of the suit. The attachment served that purpose. The property was on the rented premises when this suit was filed. Appellee prayed for foreclosure of his landlord's lien. The property was subject to such lien. It was in the hands of the officer when judgment herein was rendered, and in no different condition to what it would have been, had the same been seized under a distress warrant. The court adjudged the cost of gathering the crops against appellee, which was proper, inasmuch as the property was not subject to attachment. Justice has been done, and we do not think the judgment should be reversed because the attachment was levied; the appellant having suffered no injury thereby.

We overrule appellant's contention that the hogs were not subject to the landlord's lien. The court found that they were furnished by appellee to be used in planting and gathering the crops, by which the court meant to be used by appellant as food for himself and family while making the crop. They had not been so used when levied upon under the writ of attachment, which was September 8th. The evidence shows that hog-killing time in that county is usually in November or December.

For the reasons stated, the Judgment of the trial court is affirmed.

Affirmed.