Rosenberg v. Shaper , 51 Tex. 134 ( 1879 )

Bonner, Associate Jtjst?ce.

This case is submitted upon an agreed statement of facts. and the following two propositions for our decision:

1. Does the “ Act concerning rents and advances,” of April 4, 1874, give a lien to landlords in towns and cities upon goods, wares, and merchandise in the rented premises, to secure rents that may become due ?

2. Under the particular circumstances of this ease, is appellant entitled to a preference under said act, by virtue of his having sued out a distress warrant, though no levy thereof was made ?

Before disposing of the case, we must commend this practice to the very favorable consideration of the profession. By it the expense of an appeal will be much reduced, and both the presentation and early decision of the case greatly facilitated.

The questions involve the proper construction of the act of April 4, 1874, 14th Leg., 55, (Paschal’s Dig., arts. 7418c, 7418h,) entitled “An act concerning rents and advances.”

The first, section of the act reads as follows:

“ That all persons leasing or renting lands or tenements, at will or for a term, shall have a preference lien upon the property of the tenant hereinafter indicated, upon such premises, for any rent that may become due, and for all money, and the value of all animals, tools, provisions, and supplies furnished by the landlord to the tenant to enable the tenant to make a crop on such premises, and to gather, secure, house, and put the same in a condition for market, the money, animals, tools, provisions, and supplies so furnished being necessary for that purpose, whether the same is to be paid in money, agricultural products, or other property; and this lien shall apply only to animals, tools, and other property furnished by the landlord to the tenant, and to the crop raised on such rented premises; and it shall not be lawful for the tenant, while the rent and such advances remain unpaid, to remove or permit to he removed from the premises so leased or rented any of the agricultural products produced thereon, or any of the animals, tools, or property furnished as aforesaid, without the consent of the landlord; and such preference lien shall continue as to such agricultural products, and as to the animals, tools, and other property furnished to the tenant as aforesaid, so long as they remain upon such rented or leased premises* and for one month thereafter; and such lien as to agricultural products, and as to animals and tools furnished as aforesaid, shall be superior to all laws exempting such property from forced sales; provided, that such lien shall not attach to the goods, wares, and merchandise of a merchant, trader, or mechanic, sold and delivered in good faith in the regular course of business; and provided further, that the removal of agricultural products for the purpose of being prepared for market shall not. be considered a waiver of such lien, but such lien shall continue and attach to the products so removed the same as if they had remained on such rented or leased premises.”

This section leaves evident marks of that hasty and inconsiderate joinder of expression which should never enter into a solemn and deliberate legislative enactment, and which constitutes a most prolific source of expensive litigation.

The act of January 16,1843, (Paschal’s Dig., art. 5207,) is entitled “ An act concerning rents,” and gives, in general terms, to landlords a lien upon all the property of the tenant upon the rented premises, for the payment of the rent. That act, like the one in question, doubtless to prevent an undue restraint upon trade, has the proviso that the lien shall not attach to any goods, wares, and merchandise of a merchant or trader, after the same shall have been sold in good faith and removed from the premises.

The subsequent act of October 23, 1866, (Paschal’s Dig., art. 7110,) was intended for a different purpose, as shown by its caption, being “ An act to give a lien on the crop and stock for advances to assist in making the crop.”

That act, by its terms, was intended to give to the party making the advances a lien to secure the same, which should “ have a preference of all other liens, except that for the rent of the land on which the said crop may be made.”

By section 6 of the act now under consideration, both these former acts were repealed. This one was evidently intended to embrace both objects covered by the others, as is shown hy its caption, being an act concerning both rents and advances.

By this act two kinds of liens were provided for: one, a preference lien—that is, a lien superior to any that the tenant and a third party might make—upon the property generally of the tenant; the other, a lien, which should “ be superior to all laws exempting such property from forced sale,” upon the agricultural products and the animals and tools furnished.

One difficulty, in the construction of this section, is that the first portion of it provides that this preference lien shall be upon the property thereinafter indicated, and the only property which is expressly indicated is the animals, tools, and other property furnished by the landlord, and the crop raised on the rented premises.

It is contended that, by this phraseology, the lien does not extend to any other property; as in this case, to the goods, wares, and merchandise of a trader who is a tenant. There is serious difficulty in reconciling the ambiguous and conflicting provisions of this section, without seeming to enter upon the domain of judicial legislation, which should always be avoided. It is the duty of the court, however, to so construe the statute as to uphold every provision as far as possible; and to do this, we should look to it as a whole, and endeavor to carry out the evident intention of the Legislature in the light of the surrounding circumstances and the object intended to be accomplished.

The statute had obviously two distinct purposes in view in giving this preference lien: one to secure the rent, and the other to secure the advances. This lien was intended in its benefits, in the very words of the first part of the section, for “ all persons leasing or renting lands or tenements.” As to the agricultural products, animals, and tools furnished, this lien was intended not only as a preference one, as above defined, but superior even to the provisions of the law itself exempting such property from forced sales; for the reason that thereby the means were furnished to rais'e that subsistence, a large portion of which was thus exempted.

That this preference lien was intended to apply to goods, wares, and merchandise as a class, is, by a familiar rule of construction, (exceptio firmed regulam in casibus non exceptis,) necessarily implied, by the language in the proviso, that it shall not attach to the goods, wares, and merchandise of a merchant, trader, or mechanic, sold and delivered in good faith in the regular course of business; and that it was intended to apply to property generally, is implied by the terms of the second and third sections of the act, which require the distress warrant to issue, commanding and making it the duty of the officer to seize, without reservation, the property of the defendant.

It has long been the settled policy of the law to give to all landlords security, and speedy enforcement by stringent remedies, for the rent which may be due them.

To adopt the construction that the lien under consideration was intended to apply only to the animals, tools, and other property furnished by the landlord to the tenant, and to the crop raised by him, would virtually restrict the benefits of the act to persons leasing and renting out lands and tenements for farming purposes only, and, by an unjust discrimination, would relieve the merchant, trader, mechanic, and others from its burdens, and impose them solely upon the husbandman.

We are of opinion, then, that the act under consideration gave a lien to landlords in towns and cities upon goods, wares, and merchandise in the rented premises, under the qualification mentioned in the proviso, to secure the rents that may become due.

This, in effect, under the facts of this case, disposes of the second proposition. By the terms of the assignment, any right or rights of preference, if any there were, that might exist in law or equity, were to be duly respected and preserved by the assignee in the distribution of the assets. The lien of the plaintiff was statutory, and did not depend upon the levy, which was only the means to enforce it, and was superior to the deed of assignment, even had it not been expressly respected therein. (Morgan v. Campbell, 22 Wall., 381.)

We are of opinion that, under the law as applied to the facts of this case, the property in controversy was liable to the landlord’s lien, and that in not thus decreeing there was error, for which the judgment below must be reversed and the cause remanded.

Reversed and remanded.

[Chief Justice Moore dissented.]