Aderhold v. Blumenthal & Beckert

Aderhold v. Blumenthal & Beckert. Trover against Landlord, by Purchaser from Tenant. 1. Landlord’s lien on tenant’s goods, for rent of storehouse. — A landlord’s statutory lien for rent, on the goods, furniture and effects ot' his tenant in the rented storehouse (Code, §§ 3069-70), is not displaced or affected hy a sale of the goods by the tenant to a creditor who had knowledge or notice of the landlord’s lien, or of the fact that the goods were in a rented house; and if the purchasing creditor had such knowledge or notice, the ignorance of his agent or attorney who effected the purchase can not avail him. 2. Same; conclusiveness of judgment; defenses available to purchaser. The landlord having obtained a judgment in his attachment suit against his tenant, and being sued in trover by the purchasing creditor, the judgment is conclusive of his right to maintain the action, and can not be assailed by the purchaser on the ground that, before suing out the attachment, he had transferred the notes for rent to a third person as collateral security, and was not the owner of them ; but the purchaser may assail the judgment on the ground of fraud, or because it was not founded on a debt for rent, or because the debt was in fact paid. Appeal from the City Ooilrt of Anniston. Tried before tbe Hon. B. F. Cassady. This action was brought by Blumenthal & Eckert, suing as partners, against T. M. Aderhold and H. W. Finney, to recover damages for an alleged conversion of certain goods and chattels, consisting of chairs, table, furniture, fixtures, crockery, &c.; and was commenced on the 29th April, 1889. The goods and chattels had belonged to one Harry Toole, and were used by him in carrying on a restaurant in a house which lie had rented from said Aderhold, one of the defendants, for and during the year 1889; the annual rent being §900, and payable in monthly installments. On the 14th February, 1889, Aderhold, as landlord, sued out an attachment for rent against said Toole; and the attachment was levied by Finney, one of the defendants, as deputy-sheriff, on said goods and chattels, while yet in the rented house. On the 8th May, 1890, the plaintiff in attachment recovered judgment by default against the defendant, for the amount claimed, $550, besides costs; and the judgment-entry adds, “then came plaintiff, by his attorney, and acknowledges satisfaction of the above judgment.” The plaintiffs claimed the goods under a purchase from said Toole, and offered in evidence what purported to be a bill of sale, dated February 8th, 1889; but it contained no words of conveyance, being in these words: “Know all men by these presents, that I, Harry Toole, for and in consideration of $365 to me in hand paid by Blumenthal & Beckert, of Atlanta, Georgia, the following described personal property,” describing it;” “and further, said Blumen-thal & Beckert agree to assume and pay off a mortgage on said property,” describing said mortgage. In connection with this writing, the plaintiffs offered in evidence a writing signed by A. D. Meador as agent of plaintiff, dated on the 8th February, 1889, by which he rented to said Toole the personal property mentioned in the said bill of sale, for one week, for the sum of $5.00, “with the privilege of renting said property for one week after expiration of specified time.” Said Toole testified that, at the time the attachment was levied, he was in possession of the goods “under said contract between him and plaintiffs above set out”; that he had notified plaintiffs, prior to the sale to them, “that the house he was occupying was rented, and they knew he owned no real estate in tbe county”; and tliat none of bis notes for rent were due wben tbe attachment was sued out. A. D. Meador, who, as agent and attorney for plaintiffs, made tbe purchase of tbe goods, testified that be did not know Toole was in a rented bouse, nor that tbe bouse belonged to said Aderliold, but be bad just removed to An-niston, and he made no inquiries. J. E. Aderhold, a witness for defendants, who bad made tbe affidavit for tbe attachment, testified that tbe notes for rent, at that time, were held by one Lewis, to whom they bad been transferred as collateral security by T. M. Aderliold, being indorsed in blank; and that said notes, as they matured, were each “taken up” and paid by him as indorser; and tbe notes were produced on tbe trial. It was shown, also, that tbe goods were almost entirely destroyed by fire, while in tbe possession of tbe sheriff under tbe levy of tbe attachment. On these facts, a jury having been waived, tbe court decided tbe issues in favor of the plaintiffs, and rendered judgment for them for $562, tbe value of the goods. Tbe defendants excepted to this ruling and judgment, and they here assign it as error. Caldwell & Johnston, for appellants. The landlord’s lien on tbe goods can not be doubted, and it ivas clearly proved that plaintiffs bad notice of it. — Code, § 3061.); Lomax v. Le Grand, 60 Ala. 537; Herbert v. Hanrick, 16 Ala. 581. Tbe transfer of tbe tenant’s notes as collateral security did not take away tbe landlord’s right to sue for tbe rent, and tbe judgment in tbe attachment case is conclusive of bis right to maintain tbe action. — Code, § 2594; 88 Ala. 336; 82 Ala. 384; Jones on Pledges, § 651. Appellants further suggest that plaintiffs showed no title in themselves to tbe property, tbe alleged bill of sale containing no words of conveyance. — 78 Ala. 111-14. GORDON Macdonald, and BlacKwell & Keith, contra. A landlord who has indorsed bis tenant’s note for rent to a third person, as collateral security for a debt, can not sue out an attachment based on it before that debt is paid. Ware, Murphy & Go. v. Ltus-sell, 57 Ala. 43; Gocke v. Cheney, 14 Ala. 65; Pickens v. Yarborough, 26 Ala. 417; 2 Rand. Com. Paper, § 795, and citations. [MAJORITY — COLEMAN, J.] COLEMAN, J. Tbe goods, wben purchased by plaintiffs, were in a rented storehouse, and subject to tbe landlord’s lien. — Code, § 3069. Tbe goods were purchased in bulk, and tbe consideration was tbe payment of an antecedent debt. Moreover, tbe goods bad not been removed from tbe storebonse wben they were levied npon at tbe suit of tbe landlord, by attachment for tbe enforcement of bis rent debt. Tbe sale of tbe goods by tbe tenant did not displace tbe prior lien of tbe landlord. — Weil v. McWhorter, 94 Ala. 540. It was proven by tbe witness Toole, and not controverted, tbat appellees knew tbat Toole occupied a rented storebonse. — Lomax v. LeGrand, 60 Ala. 537; Boggs v. Price, 64 Ala. 514; Scaife v. Stovall, 67 Ala. 287. Having-notice themselves, the ignorance of their attorney and agent, Meador, through whom tbe goods were purchased, can not avail them. It is contended tbat, as Aderhold, tbe landlord, bad transferred tbe rent notes of Toole to Lewis, as collateral security to a debt he was owing to Lewis, and as tbe rent notes were so held by Lewis wben tbe attachment for tbe rent was sued out by tbe landlord against tbe tenant, tbe Circuit Court bad no jurisdiction of tbe case, and tbat the judgment rendered is a mere mullity. This position is untenable, under tbe facts disclosed in tbe record. Tbe proceedings of tbe attachment suit in tbe Circuit Court on their face were in all respects regular. Tbe court bad jurisdiction of tbe persons and subject-matter. Its judgment is conclusive, as between tbe landlord and tenant, of tbe amount due for rent, and tbat it was due tbe landlord. Tbe defendant in that suit, if tbe facts justified it, might have shown tbat tbe plaintiff did not own tbe debt, and was not tbe proper person to sue; but a stranger to that suit can not show, in a collateral proceeding, tbat tbe plaintiff was not tbe owner of tbe claim, and not entitled to maintain tbe action. If tbe bolder of the collateral nor tbe debtor objects to tbe party suing, a stranger to the action can not interfere to defeat tbe suit, or after judgment impeach its validity as between tbe parties to the suit. Tbe case of Ware v. Russell, 57 Ala. 43, is not in conflict with this principle. Plaintiffs having shown title to tbe property by their purchase from tbe tenant, it was competent for them to impeach tbe judgment obtained by Aderhold, tbe landlord, against Toole, bis tenant, for fraud, or to have shown it was not founded on a rental debt, or that tbe debt bad in fact been paid. As to these questions, tbe judgment in tbe Circuit Court was, as to tbe plaintiffs in this suit, res inter alios acta. — Dryer v. Abercrombie, 57 Ala. 497; Boswell v. Carlisle, 55 Ala. 554. It having been shown, however, that Toole was indebted for the rent of the storehouse; that the landlord’s lien attached to the goods for the rental debt; that he sued out an attachment for rent, which was levied upon the goods in the storehouse subject to the landlord’s lien, and this attachment was prosecuted to judgment in the Circuit Court; the validity of this judgment and sale of the property under the attachment can not be impeached or invalidated by proof that the rent notes upon which the attachment issued had been transferred as collateral security before the suing out of the attachment; and this would be true, even though it had not been proven, as it was, that after the attachment issued, and before judgment, the debt for which the rent notes were hypothecated as collateral security was fully paid by the landlord, and the rent notes returned to him. It is thought that these principles will be sufficient to guide the court on another trial, without noticing in detail the several questions raised by the pleadings. The ruling of the trial court did not accord with the principles of law as here declared, and the conclusion reached was not authorized by the evidence. The judgment is reversed, and the cause remanded.