Summary
In Durant Motor Co. v. Simpson (1931) 160 Miss. 313, 133 So. 672, 673, which was a proceeding by a landlord against a tenant for rent in arrear, wherein an automobile had been seized under a distraint for rent, within thirty days after its removal from the leased premises, the plaintiff was given a judgment because of sections 2200 and 3352, Code of 1930, the latter known as the Mississippi sign statute.
Summary of this case from In re WallOpinion
No. 29352.
April 13, 1931.
1. PRINCIPAL and AGENT. Automobile conditionally delivered to dealer and used in dealer's business must be treated as dealer's property, as against creditors ( Code 1930, section 3352).
Manufacturer shipped automobiles to dealer on draft covering purchase price with bill of lading attached. Dealer was unable to pay draft, but subsequently one of the automobiles was released to the dealer pursuant to authority of agent of manufacturer, with verbal reservation of title in manufacturer, but automobile to be sold by dealer which would pay therefor after sale. Subsequently, automobile was removed from dealer's premises by agent of manufacturer and stored for and as property of manufacturer.
2. LANDLORD and TENANT.
Property removed from leased premises remains subject to landlord's lien for rent for thirty days after removal unless sold to bona fide purchaser before seizure (Code 1930, section 2200).
APPEAL from circuit court of Hinds county, First district; HON W.H. POTTER, Judge.
Butler Snow, of Jackson, for appellant.
The automobile was not used, nor acquired, in the business of the Galbreath-Barnes Motor Company in the contemplation of Section 3352, Code of 1930. The situation here does not meet the test as laid down by this court in Longino v. Bank, 76 Miss. 395; Hall Safe Company v. Paine, 64 Miss. 175; Shannon v. Broom, 60 Miss. 828; Gunbel v. Koon, 59 Miss. 264; Hall Cotton Gin Company v. Berg, 65 Miss. 184; Bank v. Schraff, 108 Miss. 121; Gillaspy v. International Harvester Co., 109 Miss. 136; Adams v. Berg, 67 Miss. 234.
The landlord did not have a right to pursue the automobile with an attachment after the same had been removed from the premises by the rightful owner thereof.
The landlord, had no lien on the automobile.
Engleburg v. Ronkel, 140 Miss. 521; White v. Miazzi, 122 Miss. 213.
The statute gives the landlord a right only to a payment of his rent before the goods on the leased premises can be taken by execution or other legal process, or before the same are removed.
White v. Miazzi, 122 Miss. 213.
A bona-fide purchaser for value of such property takes it free from any claim of the landlord.
White v. Miazzi, 122 Miss. 213; Richardson v. McLaurin, 69 Miss. 70.
Knowledge by the purchaser of rent due, and that the landlord looks to the goods for payment does not hinder a valid purchase of them.
Richardson v. McLaurin, 69 Miss. 70.
W.H. Cox, of Jackson, for appellee.
The right to subject said car to appellee's demand for rent was preserved intact, by section 2200, Mississippi Code 1930, save only as against an innocent purchaser for value without notice.
As the attached car was used and acquired in Galbreath-Barnes Motor Company's business with the permission of the appellant, this property must, as to appellee, be treated as the property of said tenant.
Section 3352, Code of 1930; Payne Hardware Co. v. International Harvester Co., 110 Miss. 733.
This is a proceeding by a landlord against a tenant for rent in arrears in which the property distrained is claimed by a third person.
The Galbreath-Barnes Motor Company is, or was when this case was begun, engaged in selling and repairing automobiles, and occupied a building in the city of Jackson, leased by it from the appellee. It was the local distributee for automobiles manufactured by the appellant. Four automobiles were shipped to it by the appellant on draft for the price thereof with the bill of lading thereto attached. When this draft was presented by the bank to which it had been forwarded by the appellant, the Galbreath-Barnes Motor Company was unable to pay it, and the automobiles remained for some time in the possession of a railroad company in the car in which they had been shipped. Kurt, an agent of the appellant having full authority so to do, authorized the release of the automobiles by the railroad company to Galbreath-Barnes Motor Company, which thereupon unloaded them, delivering two of them to Kurt and placing the other two in the building in which its business was being conducted. One of these two automobiles, which only will be hereinafter referred to, was serviced, that is the fenders and bumpers thereof and an extra tire were placed thereon, which articles were shipped with, but not attached to, the automobile.
Without reviewing the evidence it will be sufficient to say that it is clear therefrom that the automobile was turned over by Kurt to Galbreath-Barnes Motor Company, with a verbal reservation of title thereto in the appellant, to be by Galbreath-Barnes Motor Company sold, which would then, but not until then, pay the appellant therefor. The Galbreath-Barnes Motor Company attempted but failed to effect a sale of the automobile, and in about a week or ten days after it received the automobile it was removed from its place of business by Kurt and stored in a warehouse for and as the property of the appellant. The Galbreath-Barnes Motor Company was in arrears on rent due by it to the appellee on the building in which its business was conducted, to collect which this proceeding was begun, and the automobile was seized under a writ of attachment about forty-eight hours after it had been stored by Kurt as hereinbefore set forth. The amount of rent due and the value of the automobile were agreed on by counsel who further agreed "that the Galbreath-Barnes Motor Company has a sign bearing the name of `Only Galbreath-Barnes Motor Company' conspicuously displayed at its place of business in the city of Jackson; . . . (and) that E.H. Simpson had no actual notice or knowledge as to any limited ownership the Galbreath-Barnes Motor Company might have had in the said attached car."
At the close of the evidence the court below directed the jury to return a verdict for the appellee, the landlord, and there was a judgment accordingly.
The appellant's contentions are that the case is not within the provisions of section 3352, Code of 1930, for two reasons: First, it does not appear that the automobile was acquired or used by Galbreath-Barnes Motor Company in its business; and, second, if so acquired or used, it ceased to be within the provisions of the statute when it was removed from Galbreath-Barnes Motor Company's place of business and stored by the appellant's agent in another place.
The first of these contentions is disposed of by the statement hereinbefore made of the circumstances under which the automobile was delivered by Kurt to Galbreath-Barnes Motor Company.
Under section 3352, Code of 1930, this automobile must "be in all respects treated in favor of . . . creditors" of Galbreath-Barnes Motor Company as its property.
Under section 2200, Code of 1930, the property of a tenant removed from the leased premises, who is in arrears for rent thereon, remains subject to the landlord's lien for the unpaid rent for thirty days after the removal, unless it is "sold in good faith for a valuable consideration before seizure made." This automobile was not sold to anyone, but was taken possession of by the real owner thereof as such. When the appellant delivered the automobile to Galbreath-Barnes Motor Company to be paid for by it or returned, it subjected it, as to the creditors of the Galbreath-Barnes Motor Company, to treatment in all respects as the property of that company. Consequently section 2200 applies here to the full extent that it would had the automobile been the absolute property of Galbreath-Barnes Motor Company. Payne Hardware Company v. International Harvester Company, 110 Miss. 783, 70 So. 892.
Affirmed.