Engleburg v. Tonkel , 140 Miss. 513 ( 1925 )

^* Headnotes 1. Landlord and Tenant, 36 C.J., Section 1474; 2. Landlord and Tenant, 36 C.J., Section 1486; 3. Receivers, 34 Cyc., p. 38; 4. Receivers, 34 Cyc., pp. 29, 30; 5. Receivers, 34 Cyc., p. 47; 6. Receivers, 34 Cyc., p. 37; 7. Receivers, 34 Cyc., p. 111; 8. Receivers, 34 Cyc., p. 30; 9. Appeal and Error, 4 C.J., Section 2900. Appellee, Mrs. Fannie B. Tonkel, filed her bill against appellant, Harry Engelburg, in the second district of the chancery court of Bolivar county. Appellant demurred to the bill on the ground that it presented no equity upon its face. The demurrer was overruled and the trial court granted an appeal to settle the principles of the cause.

We believe the following will be a sufficient statement of the case made by appellee's bill:

Appellee sought to recover from appellant, as her tenant, rents due her for the use of a store building in Shaw, which rents had been assigned to appellee by her husband, M. Tonkel, as landlord, and certain other rents for the same building, which appellee claimed had been assigned to her by her father, H. Borodofsky, as landlord, after the purchase by the latter of the store building in question from his son-in-law, the said M. Tonkel. Appellant had a stock of goods, wares, and merchandise stored in the leased building. Appellant was insolvent, and his creditors were suing. These suits would soon ripen into judgments and his goods be taken by execution. Appellee claimed a right or lien under section 2851, Code of 1906 (section 2349, Hemingway's Code), against appellant's goods, wares, and merchandise stored in the leased building superior to that of any claim or lien of appellant's other creditors. The bill prayed that appellee's lien or right against these goods be established, and that the goods be sold to satisfy appellee's rent claim, and, if not sufficient for that purpose, that appellee be given a decree over against appellant for the balance. In addition, there was a prayer for general relief.

It was held by this court in White v. Miazza-WoodsConstruction Co., 122 Miss. 213, 84 So. 181, construing section 2851, Code of 1906 (section 2349, Hemingway's Code), that a landlord had no lien upon his tenant's goods other than agricultural products; that the statute in question did not give a landlord's lien on the property on the leased premises for unpaid rent; that the statute gave the landlord a right only to the payment of his rent before the goods on the leased premises could be taken by execution or other legal process; that, therefore, a bona-fide purchaser for value of such property took it freed from any claim of the landlord.

Appellant's goods on the leased premises had not been seized by execution or other legal process. Appellant's failing condition had not reached that stage. Appellee, therefore, stood as a simple contract creditor and nothing more. She had no right above appellant's general unsecured creditors except what might be termed an inchoate right that might or might not develop into a preference under the statute.

Appellee's bill presented no ground for the appointment of a receiver. The appointment of a receiver is not an independent equity, but, on the contrary, is an auxiliary remedy. In order to justify the appointment of a receiver, the party applying therefor must show either that he has a clear right to the property involved, or that he has some lien thereon, or that the property constitutes a special fund to which he has a right to resort for the satisfaction of his claim; and further that the possession of the property itself, or the income arising therefrom, is in danger of loss from neglect or insolvency of the adversary party. A receiver will not be appointed at the instance of a simple contract creditor without a lien. A bill asking the appointment of a receiver must show a cause of action in complainant, to which cause of action the receivership is a necessary auxiliary or aid. A receivership can never be the primary object of a suit; it must be ancillary or not at all. Griffith's Chancery Practice, sections 467, 468, 472; Mays v.Rose, Freem. Ch. 718; Vause v. Woods, 46 Miss. 128; Clark v. Fleming, 130 Miss. 510, 94 So. 458; Whitney v. Bank,71 Miss. 1009, 15 So. 33, 23 L.R.A. 531. In the present case there is no cause of action shown in appellee to which a receivership could be auxiliary. Appellee neither owned the goods in question, nor had she any lien thereon.

Appellee contends, however, that even though it be true that there is no equity on the face of her bill, still, under section 147 of the Constitution, the decree complained of cannot be reversed; that where the question alone is one of legal or equitable cognizance, there being no other error on the face of the record, the judgment must be affirmed; that the chancery court having assumed jurisdiction, there can be no reversal on that ground alone, even though the cause be one purely of legal cognizance. Section 147 of the Constitution provides in substance: That no judgment or decree of a chancery or circuit court rendered in a civil case shall be reversed on the ground of want of jurisdiction to render such judgment or decree growing out of any error or mistakes as to whether the cause be of equity or common-law jurisdiction unless there be error in the proceedings, other than jurisdiction, in which case, if it shall be necessary to remand the case, the supreme court shall remand it to that court which in its opinion can best determine the controversy. Construing this constitutional provision inCazeneuve v. Curell, 70 Miss. 521, 13 So. 32, which was a cause involving strictly a legal demand (an action for recovery of damages for an oppressive and grossly excessive levy brought in the chancery court), this court held that in a case of that character section 147 of the Constitution had the effect of practically obliterating the lines of demarcation between courts of law and equity; that, where the judges and chancellors chose to disregard such lines of demarcation, the supreme court was forbidden to reverse or annul their decrees or judgments, even though there was an entire want of jurisdiction, provided no other error than that was apparent on the record.

The sole question presented by the bill and demurrer in the present case is whether appellee's cause of action was one of legal or equitable jurisdiction. It is undisputed, and is true, without doubt, that appellee had a cause of action at law. She had the right under the landlord and tenant statute to proceed in a court of law against the goods by distraint for the rent due her, but instead of pursuing the statutory remedy, she chose to go into a court of equity. Appellee in her bill states a legal cause of action for the recovery of rent due her by appellant. The bill has a prayer for general relief. Under the allegations of the bill and the prayer, discarding entirely its other features, the chancery court had the power under section 147 of the Constitution to render a personal decree in favor of appellee against appellant for the rent due by the latter to the former although it was purely a legal cause. The Constitution gives chancery courts the power, if it chooses so to do, to try and determine purely legal causes, and their decrees in such causes will not be reversed on appeal unless there be other error on the face of the record. For aught that it is shown by the record in this case, the chancery court may have determined to assume jurisdiction, notwithstanding there was no equity on the face of the bill. It follows from these views that the decree complained of must be affirmed, and the cause remanded.

Affirmed and remanded.