[Milner et al. v. Milner.] person of her agent and his assistants-the defendants had no more right to cross its threshold than had they been the most casual strangers. Moreover, it is shown that Mrs. Milner was in the act of removing from the premises, and this would seem of itself to amount to a relinquishment of any right-if otherwise she would have had such right-based on the facts of her having continued to live in the house up to that time and acted as head of the family, if she had so acted. The entry into the plaintiff's room was, therefore, a trespass, and it was none the less so on the concession that the personal property therein belonged to Mrs. Milner. There is no authority in the law for taking and carrying away even one's own property through the commission of a trespass upon the property-possessory or by title-of another. On this principle the court properly instructed the jury that the probate proceedings, under which Mrs. Milner claimed the property, did not confer any right upon her to take it in the manner shown by the evidence. And this charge might also, perhaps, be rested on the consideration that if, as one aspect of the evidence went to show, this property belonged to plaintiff and not to the estate of her father, the probate proceedings were abortive to confer any right or title in or to it upon the widow and minor child, it not appearing that plaintiff was a party to those proceedings, even if that would make a difference, which we do not decide. What we have said disposes of the objection to that part of the general charge whereby the jury were instructed that, "if the plaintiff was occupying the room, she had a right to it as against a wrongdoer," it being, as we have seen, undisputed that her occupation was rightful, and, as we have held, that such occupation became exclusive of Mrs. Milner and her agents upon plaintiff's objection to their entry. The jury could not have been misled to the conclusion that defendants were wrongdoers; under the uncontroverted evidence they were wrongdoers. Charges 1 and 2, given at the request of the plaintiff, and the refusal of the court to give charge 10, requested by defendants, are similarly covered, and exceptions to these rulings of the court determined adversely to appellant by the conclusions announced above. This action is joint and several. It was with the jury [Ehrman v. Oates.] to say that both defendants were guilty, or that neither was, or that either one was. It is a sufficient disposition of the exception to the court's refusal to give defendants' 12th charge, to say that the jury would thereby have been instructed that whatever verdict they might return, "if against the defendant,must be a joint judgment against both defendants." This would have been misleading and invasive of the province of the jury. We have considered all the assignments of errors insisted on in argument, and, finding them without merit, the judgment is affirmed. Ehrman v. Oats. Action on the Case. 1. Action on the case; destroying landlord's lien.—An action on the case will not lie against one who, with notice of a landlord's lien, receives from the tenant property subject to said lien, unless it appears that he has disposed of the property or its proceeds, so that the lien can not be enforced against either. 2. Same; averment of complaint.-When, in an action on the case to recover damages for the taking by defendant of cotton or its proceeds, on which the plaintiff alleged that he had a landlord's lien, there is no averment in the complaint that the defendant has converted or removed the cotton or its proceeds, so that the lien can not be enforced thereupon, such complaint is defective, and subject to demurrer. APPEAL from the Circuit Court of Montgomery. This was an action on the case brought by the appellant against the appellee; and sought to recover damages for the taking by the defendant of "three bales of cotton or its proceeds," on which the plaintiff alleged that he had a landlord's lien for rent. The complaint filed by the plaintiff in this case was in the following language: "The plaintiff claims of the defendant one hundred dollars damages, for that plaintiff is the holder and owner by transfer of a rent note made by Abner Williams, on the 24th day of January, 1891, for the payment of one hundred dollars, to F. L. Ashley, [Ehrman v. Oates.] for rent for the year 1891 of thirty-five acres of land lying in the county of Montgomery, Alabama, about four miles west of the city of Montgomery, being part of said F. L. Ashley's farm, which said rent note was due on the 15th of October, 1891. Plaintiff avers that said Williams raised three bales of cotton during the year 1891 on said rented premises, besides other produce, and turned over said three bales of cotton or its proceeds to said defendant, without paying said rent, and without consent of plaintiff, and said defendant received said cotton or its proceeds with notice that the same was subject to a lien for said rent; that said rent is unpaid and due, and plaintiff's lien on said three bales of cotton has been lost by said wrongful conduct of defendant, wherefore plaintiff sues." The defendant demurred to this complaint on the grounds: 1st. Said complaint fails to show that defendant had any knowledge, or means of knowledge, that the proceeds of the bales of cotton alleged to have been turned over to defendant was affected by any lien of plaintiff. 2d. Said complaint fails to show how said proceeds of the cotton were subject to any lien in favor of the plaintiff. 3d. Said complaint fails to show any act by which the plaintiff has been deprived of any lien. 4th. Said complaint fails to show with sufficient certainty what defendant has received. The court sustained these demurrers, and the plaintiff declining to plead further, judgment was rendered for the defendant. On this appeal the plaintiff assigns as error the sustaining of the demurrers, and the rendering of judgment for the defendant. E. P. MORRISETT, for appellant.The contention of the defendant, that an action on the case could not be maintained for the proceeds of rent cotton, and that the proper action was assumpsit is not tenable. Where a tort is committed the injured party may sue in tort, or he may waive the tort and sue in assumpsit. The only question in this case, whether the landlord has a lien on the proceeds of rent cotton, has been repeatedly decided in the affirmative by this court. - Hussey v. Peebles, 53 Ala. 435; Warren v. Barnett, 83 Ala. 208, 3 So. Rep. 609; Westmoreland v. Trousdale, 60 Ala. 455-6. GORDON MACDONALD, contra. [Ehrman v. Oates.] COLEMAN, J.-This was an action on the case by the appellant Ehrman against the defendant Oates. A demurrer was sustained to the complaint, and the plaintiff, declining to amend or plead further, judgment was rendered for the defendant. The only question presented by the record is, whether an action on the case will lie in favor of a landlord against one, with notice, to whom a tenant pays the money, the proceeds of property sold by the tenant upon which the landlord held a lien for rent. The statute gives the landlord a lien upon the crops grown upon the rented premises, and provides that the lien may be enforced by attachment, which may be levied upon the crops or proceeds thereof.-Code, §§ 3056, 3063. Any person who knowingly, by purchase or otherwise, deprives the landlord of the opportunity of enforcing this lien is guilty of a tort, and is liable in an action on the case. The right of action is given against those who wrongfully deprive the landlord of his remedy.-Hussey v. Peebles, 53 Ala. 434; Westmoreland v. Foster, 60 Ala. 455; Price v. Pickett, 21 Ala. 741. The legal effect of the lien given to the landlord does not invest the landlord with a jus ad rem or a jus in re, but a prior right of payment; the right to have so much money carved out of the proceeds. When the property has been converted into money by the tenant, the proceeds is subject to levy in his hands, or the hands of one who receives it with knowledge of the lien. This is the effect of section 3063 of the Code. Action in case will lie against a tenant who by sale or otherwise disposes of the property in such manner that the lien can not be enforced by attachment, and also against one who, knowing of the lien of the landlord, places the crop or property beyond the remedy of the landlord. If the tenant sells the property and has the proceeds in possession, or if he pays the money over to a third person, who has notice that it is the proceeds of property upon which there is a lien, assumpsit will lie to recover it; or a court of equity will declare a trust. Pickett's Case, supra; Westmoreland Case, supra. The statute says the proceeds are subject to a levy, (Code, 3063), and we have held the effect of this section was to extend the lien to the proceeds of the crop.—Scaife & Co. v. Storall, 67 Ala. 243; Barnett v. Warren & Co., 82 Ala. 557, 2 So. Rep. 457. [George et al. v. Central Railroad & Banking Co. et al.] There is no averment in the complaint that the defendant has ever converted or removed the cotton or its proceeds. Non constat, but that the cotton or its proceeds is held by the defendant, subject to the remedy of the landlord. Until there has been some act by the defendant by which the lien is destroyed, or the lien can not be enforced upon the property or its proceeds, we can not say the defendant is liable in case. The averment, that the lien was lost, is a mere conclusion of the pleader, and does not follow from the facts averred in the complaint. The complaint is defective, and subject to de murrer. Affirmed. George et al. v. Central Railroad & Banking Co. et al. Bill in Equity by Stockholders of a Railroad Corporation to cancel a Lease by said Corporation, and to Enjoin another Railroad Corporation from voting at Election of Officers. 1. Lease of one railroad company by another.-Under the general law, in the absence of special statutory authority, one railroad corporation has no power to lease its road or other property to another railroad corporation. 2. Same; when contrary to statutory provisions; equity of bill for cancellation.-Under the statutory provisions of this State (Code, § 1586), a railroad corporation can lease its road and property to another railroad company that is continuous or connected with it by the performance by each of the companies of the requirements of said section; but a lease executed by two such railroad companies is invalid, which, while reciting that it was executed by the directors of each company, does not recite that the stockholders' meeting of one of the companies was called by its directors at a time and place, and in the manner designated by them, and in reference to the other company its recitals fail to show that the lease was assented to by a majority in value of the stockholders, represented in person or by proxy at a meeting called by the directors, at such time and place, and in such manner as they might designate; and a bill filed by the stockholders of one of the railroad corporations, seeking the cancellation 101 607 110 452 101 607 119 279 101 607 121 130 122 172 |