Mississippi Supreme Court, 1922

Powell v. Tomlinson

Powell v. Tomlinson
Mississippi Supreme Court · Decided March 15, 1922 · Anderson
129 Miss. 354; 92 So. 221

Powell v. Tomlinson

Opinion of the Court

Anderson, J.,

delivered the opinion of the court.

This case originated in the court of a justice of the peace of Marshall county. Appellant, B. N. Powell, there sued appellee, S. B. Tomlinson, for one hundred and twenty-three dollars and thirty-seven cents. There was a judgment in favor of appellee, from, which appellant appealed to the circuit court. There was a trial in the circuit court, and again a judgment was rendered in favor of appellee, from which appellant prosecutes this appeal.

Appellant leased for the year 1920 a part of his farm to one Lesure. The latter in turn sublet- a part of the land so leased from appellant to Crane; therefore Lesure was appellant’s tenant and Crane Lesure’s tenant and appellant’s subtenant. Appellant furnished his tenant, Lesure, money, goods, and supplies with which to make a crop amounting in price to four hundred and fifty-three dollars and sixty-five cents. Of this amount Lesure paid appellant out of -the proceeds of his crops all but one hundred and twenty-three dollars and thirty-seven cents. Appellant furnished the subtenant Crane nothing; but appellee furnished him the means with which to make a crop on the land sublet to him, and to secure the payment of the same took a deed of trust on the crops raised by him thereon. The subtenant Crane paid the rent he agreed to pay to his landlord Lesure, and the balance of his crop he sold and delivered to appellee, to be applied on his said supply indebtedness. Thereupon appellant sued appellee for the conversion of said crops so bought by the latter, seeking to hold appellee liable to the extent of the balance due appellant by his said tenant Lesure. At the time of the bringing of this suit appellant held as security for said balance due him two deeds of trust; one executed by Lesure and *360wife to Dr. Moore on some stock and by the latter assigned to appellant; and the other executed either by Lesure and wife jointly or by the wife alone (the record leaving this in some uncertainty) on the crops to be raised during the year 1921 as well as other property. This latter deed of trust secured supplies to be advanced during 1921, and further provided that it should be security for said unpaid balance due appellant by his said tenant for advances for the year 1920, and fixed the date of payment, as we understand the record, some time in the fall of 1921.

The question is whether or not with that security in his hands appellant will be permitted under the law to pursue a purchaser in good faith from his subtenant of the agricultural products raised by such subtenant. We have a case here where the agricultural products were not purchased from the original tenant, but from the tenant of such tenant, therefore the subtenant of the landlord, who owed the latter nothing whatever for either rent or supplies.

It was held in Applewhite v. Nelms, 71 Miss. 482, 14 So. 443, that in view of the fact that section 2832, Code of 1906 (Hemingway’s Code, section 2330), gave a lien to the landlord for his rent on all agricultural products revised on the leased premises by whomsoever produced, that a subtenant, by reason of the liability of his crops to such lien, to that extent occupied the relation of surety for the debt due by the original tenant to the landlord for rent, and therejjore had a right to compel the landlord to first resort to the estate of the tenant, the principal debtor, including all securities held by him against such tenant, before resort could be had to the crops of the subtenant.

Scott & Garrett v. Green River Lbr. Co., 116 Miss. 524, 77 So. 309, although not directly in point, is illustrative of the principle involved. It was held in that case that a landlord having a claim for rent against his tenant, and also a light of action against a person buying products of the leased premises from such tenant, and who thereafter becomes indebted to his tenant for wages due or in some *361other maimer, is bound to apply such wages, to the extent that they are not exempt from the debts of the tenant, to said rent claim. It was said in that case that the landlord ivas bound to use reasonable means to reduce his claim against the purchaser from the tenant, and therefore he would not be permitted to throw away an opportunity to collect his debt by other means, and resort to a purchaser in good faith from the tenant, of the agricultural products.

Here we have simply the subtenant Crane as surety for the indebtedness of Ms landlord Lesure to the original landlord, appellant, to the extent of the value of the crops produced on the leased premises by such subtenant. And ive have the landlord entirely ignoring the security given him by his tenant Lesure and his wife in the form of said two deeds of trust, on crops and stock, and seeking to recover the Avliole amount of' such balance due him by his tenant, from the purchaser of the crops from his subtenant. Under the iaAV where the principal debtor and the creditor make a material change in the contract evidencing the indebtedness without the consent of the surety, the latter is thereby released from his obligation. That is Avhat was done here, and it had the effect to release the subtenant, the surety for the debt of the tenant, and to free the crops produced by him on the leased premises from the original tenant’s debt to the landlord; and from this it follows that the purchaser of such crops from the subtenant got them likewise freed from the lien of the landlord.

Affirmed.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.