Knox, Respondent, vs. Hunt & Porter, Appellants, 18 Mo. 243

Scott, Judge, delivered the opinion of the court. This was an action of trespass de bonis asportatis, commenced by the plaintiff, Knox, against the defendants, Hunt and Porter, in October, 1848. There was a verdict and judgment for the plaintiff. On the 9th July, 1847, Hunt, the defendant, leased to E. K. Bodge his farm in St.

Louis county, with all the coal mines in and upon the same, then opened or to be thereafter opened, for the term of six years, to commence from the date of the lease, for the sum of seven thousand dollars ; one thousand dollars of which was to be paid on or before the 15th July, 1847; three thousand dollars on the first of October, 1848 ; and the balance of the sum in annual instalments of six hundred dollars ; the first to be paid on the 1st of October, 1849. On the 18th December, 1847, E. K. Dodge assigned his lease to Parker Dodge and James T.

Key, who formed a partnership and carried on the business of farming and mining. About the 1st October, 1848, Key, one of the partners, sold all the partnership property, the teams and the crops of grain and hay upon the farm, to Richard E. Knox, the plaintiff. Afterwards, when Knox undertook to remove the crops from the leasehold premises, he was prevented by Hunt, the defendant, and others : Hunt being the landlord, claimed a lien on the crops for the payment of his rent. 1.

Under these facts, the question is, whether Hunt, the landlord, had a lien on the crops for the rent in arrear and unpaid, and whether if he had a lien, he could enforce it by seizing the crops without any process of law, in order to prevent their being removed from the leasehold premises. If there was any rent due for the year during which the crop was raised, we see no reason why the lien of the landlord should not exist. Rent may be reserved in such a way as will not entitle the landlord to a lien, especially in long leases.

Whether any rent was due for the year in which the crop was made, we will not determine, as it may be conceded that Hunt had a lien, and yet his conduct cannot be sustained in law. It is not seen how the existence of a lien in favor of a landlord, gives him a right to enforce it without process of law. If the lien could be enforced by the landlord without process, it would scarcely have been necessary to prolong its duration for the term of eight months.

Nor could it have been the intention of the legislature that the landlord should have power to seize the crops to hold them, or to prevent their removal from the leasehold premises, in order that they may be liable for the rent. So important a power, and one so

summary in its enforcement, would not have been left to implication. There is nothing novel in the idea of a lien existing, unconnected with a right to the possession of the property on which it exists. Our law abounds with instances of such liens. 2. The lien continues for eight months, and during that time the landlord may take steps to subject the crop to the payment of the rent.

If the property remains in specie, in the hands of an assignee, he may, during the continuance of the lien, seize it under process, or might, if it was consumed, hold the assignee accountable for its value, if the assignment was voluntary or taken with a knowledge of the existence of the lien. The crop, during the existence of the lien, would not be subject to the process of the law without payment of the rent, at the suit of any other creditor, as the lien of the landlord would protect it from sale. Nothing can be seized under execution which cannot be sold. Cross on Lien, 48.

Judge Ryland concurring, the judgment will be affirmed. Judge Gamble did not sit in the case.