Lapas attēli
PDF
ePub

and tenant existed between Almand and Plunkett. The rule seems to be that where the landlord furnishes the land and supplies, and other things of that sort, and keeps general supervision over the farm, and agrees to pay a certain portion of the crop to the laborer for his work, the laborer is then a cropper, and judgments or liens cannot sell his portion of the crop until the landlord is fully paid; but where there is a renting, and the relation of landlord and tenant exists, an older judgment will subject the renter's crop, although the landlord may have a contract with the tenant in which it is stipulated that the crop is to be the landlord's until the debt for supplies is paid off. If the landlord wishes to protect himself, the law gives him a lien for supplies in preference to the older judgments and liens, and he must take this lien and foreclose it in order to protect himself” (7).

§ 93. Same: Special statutory liens. Where such statutory liens in favor of the lessor exist as are mentioned above, he must pursue the statute to make them effective; and the statutes differ very much in terms. In an action by the lessor for an injunction to restrain a sale of a stock of goods by the tenant's chattel mortgages, the court said: “Defendants' position is that as the rent was made payable monthly in advance, and was kept so paid until the commencement of the action, the plaintiff had no claim for rent at that time, and consequently no lien for rent. The question presented involves a construction of $ 2017 of the code, which is in these words: 'A landlord shall have a lien for his rent upon all crops grown upon

(7) Almand v. Scott, 80 Ga. 95.

the demised premises, and upon any other personal property of the tenant which has been used on the premises during the term, and not exempt from execution, for a period of one year after a year's rent, or the rent for a shorter period claimed, falls due; but such lien shall not in any case continue more than six months after the expiration of the term.' The plaintiff insists that under this statute he acquired a lien for the rent of the entire term, and that the lien for the whole of such rent attached from the commencement of the lease upon all property of the tenant then on the premises, and upon all other property of the tenant afterwards brought upon the premises, commencing as soon as it was brought. This position we believe to be correct.

The disposition of the property by the tenant, as shown in this case, while it may not have been with an actual fraudulent intent on the part of the tenant, yet destroyed the security which the law gives the landlord for his rent, and in this sense defrauded him of his statutory lien. In short, if the right to the lien for rent not yet due be conceded, it follows that the landlord should, by proper proceedings, be enabled to prevent such a disposition of the property as would make the security worthless” (8).

§ 94. Same (continued). These statutory liens begin as soon as the relation of landlord and tenant is created and the property brought onto the premises, and not before, and unless the statute so provides it is not necessary to the validity of the lien that the lease be in writing or that it be recorded even if written. But the legal title and

(8) Martin v. Stearns, 52 Iowa 345.

right to possession remain in the tenant subject to be divested by the appropriate proceedings. The statutes usually extend only to rent and supplies furnished by the lessor, and will not be extended by the courts by construction. The rent includes all rent in arrear, and in some states rent to accrue, also the costs and expenses of the proceedings to force payment. The supplies include only supplies furnished by the lessor himself. He has no lien by reason of merely guaranteeing payment, but it is not necessary that the supplies pass through his hands. The lien covers only property of the tenant that has been on the premises unless the statute plainly includes more. It does not extend to the proceeds of property sold, nor to insurance money for property destroyed, nor to property of third persons, nor to choses in action of the tenant. Where it extends to crops raised on the premises, as it usually does, it includes crops raised by undertenants of the tenant. A stranger dealing with the tenant and learning facts which put him on inquiry, and which if pursued would inform him of the landlord's lien for rent, is charged with knowledge of the lien, and if the statute creating the lien provides no protection for persons having no notice thereof, they are postponed to the claims of the landlord for rent whether they knew of his lien or not. A landlord may expressly waive his lien; or he may do acts which will estop him from claiming it against certain persons, as if he says he has been paid or does other acts on which other persons rely and act to their injury; or he may impliedly waive the lien, but taking other security is not a waiver. The proper remedy for enforcement of the lien depends on the provisions of the statute.

$ 95. Attachment for rent. In a number of the states the statutes provide for a peculiar attachment in favor of lessors for the recovery of rent, differing from the ordinary attachment open to any creditor. If a lessor proceeds under the general law of attachment open to all creditors he must comply with it to succeed, and if he proceeds under the attachment for lessors he must show in his papers what that law requires to be shown and must obey it, and cannot succeed by proving and proceeding as required by the general attachment law. This peculiar remedy is available only for the recovery of rent, not to recover on demands for breach of other covenants in the lease. Under most of these statutes the attachment is limited to property subject to the landlord's lien. The only safe guide as to the procedure, grounds for attachment, etc., is the statute of the particular state. Under most of the statutes the grounds for attachment mentioned are acts such as endanger the collection of the rent, such as removal of the property of the tenant from the premises. The remedy is limited to the lessor or the assignee of the reversion, and is not open to the assignee of the rent. For a wrongful attachment under these statutes an action for damages lies in favor of the injured tenant.

$ 96. Action for rent: Parties. As the covenant to pay rent runs with the land and the reversion, the failure to pay the rent at the agreed time by the lessee or his assignee entitles the lessor to an action of debt or covenant against the lessee and also against the assignee, and the assignment is no defense to the action against the lessee. Also the grantee of the reversion succeeds to the rights of the lessor, and may sue the lessee for non-payment of all rent accrued before he assigned and against the assignee for all the rent accruing while he holds the term.

$ 97. Same: Forms of action. To maintain the action of debt it is essential that the rent be for a certain amount, but it is not necessary that the lease be in writing. To maintain the action of covenant it is essential that the lease be in writing under seal. In any action for rent it is essential that the rent was due on a day before the action was commenced; if the action is commenced on the day the rent falls due it is premature and will fail. No demand for the rent is necessary before commencing an action for the rent. Because the lessor can maintain no action for the rent against the lessee's subtenants, for want of privity with them of either contract or estate, it has been held in a few cases that in case of the insolvency of the tenant the lessor may maintain an action in equity against the subtenant to have his rent applied to pay the lessor; the same result could usually be accomplished by the lessor without going to equity, by merely distraining the subtenant's goods, or requiring him to pay on penalty of being ousted for breach of the condition in the lease that if the rent is not paid the lessor may enter and terminate it. Where such remedies exist, the right to resort to equity would scarcely be allowed. Assumpsit will lie on a lease express or implied, written or oral, un

[ocr errors]
« iepriekšējāTurpināt »