Kate A. Weed, Administratrix, vs. Penelope L. Standley, 12 Fla. 166

DuPONT, O. J., delivered the opinion of the Court : The argument on this appeal was heard at a term of the Supreme Court, recently held at Lake City, and the case was taken under advisement. The record shows that on the 21st of November, 1866, an agreement in writing was entered into between the appellee and one Reuben Weed, the intestate of the appellant, whereby the appellee agreed to rent to the said intestate for, and during the year 1867, and for the consideration of fifteen hundred dollars, a plantation located in Alachua county, in this State.

This agreement is shown to be under seal, and its exacution to have been attested by two witnesses. There is also an express stipulation contained in the agreement, that one half of the stipulated rent was to be paid on the first day of December, 1867, “ the other half before the crop is removed from the plantation” The record further shows, that Reuben Weed departed this life on the 22d day of October, 1867, and that administration was granted to the appellee soon thereafter.

It is-also shown that on the 16th day of December, 1867, a distress warrant was sued out at the instance of the appellee, and was levied on the corn, cotton and other property on the plantation, to satisfy the amount of the said rent, which then remained all due and unpaid. It is further made to appear that' after the appellant had entered upon the administration, she becoming satisfied that the estate was insolvent, filed in the Court of Probate a written suggestion of the fact, and asked that the debts of the estate should be settled pro rata.

Upon this state of facts, the parties made up an agreed case to be submitted to tlie adjudication of the Judge of the Circuit Court. The point to be adjudicated was, whether this claim for rent was to be paid in full, or to come in for its fro rata share, with the other debts against the estate. The court decided that the claim was protected by a special lien, growing out of the written agreement, and that it was to be paid in full. It is from this decision that the appeal is taken, and now brought here for our adjudication.

The counsel of the appellee bases her claim to priority of payment, upon two propositions : First, that the agreement in writing is essentially a statutory mortgage, and created a special lien upon the crops to be made upon the plantation, from the date of its execution. And, secondly, that by the provisions of the statute entitled “

an act for the relief of landlords,” (Pamp. Laws of 1865-6, page 61,) a special lien upon the crops is given, which takes the claim for rent out of the operation of the act providing for the distribution of insolvent estates. The relevancy of these propositions to the case before us will be seen by reference to the case of “ Kimball, Sheriff, &c., vs. Jenkins, Adm’r,” reported in 11 Fla.

Rep., 111, wherein this court ruled that the words “ all other claims or demands ” occurring in the act of 1853, (providing for the distribution of insolvent estates,) are not to be construed as vacating prior existing liens, whether the same arise from contract or are given by mere operation of law. In considering the first proposition we are inclined to the opinion that, under the very comprehensive terms of the statute which designates what character of writings shall bo held to be mortgages, the agreement between these parties was of that character.

The stipulation contained in the written agreement that the rent should be paid before the crops should be removed from the plantation, was manifestly designed to “secure the payment of the money,” which should become due for the use and occupation of the same, ¡and bi’ings this paper within the very words of the statute. ,(Thomp. Dig., p. 376.) But though held to be a mortgage, it does not follow that any lien was thereby created, until all the conditions of the statute had been complied with.

The crops to be grown on the plantation, upon which it was the .design to create a lien, was of that class of property designated as personal; and the statute expressly provides that “ no mortgage of personal property shall be effectual or •valid to any purpose whatsoever, uuless such mortgage shall .be recorded in the office of records for the county in which .the mortgage property shall be at the time of the execution ,of the mortgage, or unless the mortgaged property be delivered at the time of the execution of the mortgage, or within twenty days thereaftei*, to the mortgagee, &c.” Thomp. Dig., 183.

The record in this case furnishes no evi.dence that this paper was ever admitted to record, so that ,of whatever benefit it may be to the appellee, as evidence, .to establish the amount of her demand against the estate, it .cannot be invoked as creating a lien, which would give that .demand a priority of payment. The second proposition asserted by the counsel for the appellee assumes that, “ by the provisions of the statute, entitled -c

an act for the relief of landlords,’ a .special lien upon the crops is given, which takes the claim for rent out of the .operation of the act providing for the distribution of insolvent estates.” We have examined this statute with great care, .find are unable to- discover, in either its phraseology or spirit, any design or intention on the part of the legislature (to give any lien on the crops or other property for security of the rent agreed to be paid.

In the enactment of this sstatute it was manifestly the intention of the legislature .only to enlarge and extend the “ remedy,” and not to alter any pre-existing “ right,” further than to require that when this enlarged remedy should .be invoked, the right should be evidenced by a “ written contract, signed and sealed by the contracting parties, in the presence of two subscribing witeesses.” By reference to the law as it stood at the date of the enactment of this statute, it will be seen that the remedy by “ distress” was limited to the amount of fifty dollars, and for the recovery of any larger amount the party was put to his action for “ use and occupation.” This statute only extended the remedy by “ distress'” to any amount that might have been agreed upon by the parties, provided the same were evidenced as before stated; and the only reference to the matter of “ lien ” occurs in the second section, where it is declared that “ such writ shall be a lien on all the crops made or grown on such land, for, and during the year for which such rent may be due, or to become due.” Thus it will be seen that the lien given by this statute arises from the issuing of the £‘ writ of distress,” and as this writ was not issued until after the death of the intestate, it is clear that it does not come within the ruling in the case of Kim-ball vs.

Jenkins, before referred to. We have examined this case with great care, and after the most mature deliberation, are constrained to decide that, upon the facts of the case as they have been made known to us by the record, the demand of the appellee is not entitled to any preference over that of the other creditors of the estate. It is therefore ordered and adjudged, that the judgment of the Circuit Judge be reversed and set aside, and that the appellee be remitted to the Court of Probate, there to have her claim settled pro rata with the demands of the other creditors of the estate.

DECISIONS OF 'DIM .SUPREME COURT OF FLORIDA, AT TERMS HELD IX 18(58-0.