Opinion
2 Div. 133.
April 20, 1939.
Appeal from Circuit Court, Perry County; John Miller, Judge.
J. W. Arbuthnot, Jr., and Clifton C. Johnston, both of Marion, for appellant.
The landlord has a lien on the goods, furniture and effects of the tenant for his rent, superior to all other liens except for taxes. Code 1923, § 8814. The lien may be enforced by attachment, but may also be enforced in equity. Code 1923, §§ 8815, 5935; Russell v. Thornton, 216 Ala. 60, 112 So. 347; 13 Alabama Digest, Landlord and Tenant, p. 550, 258. The lien of a landlord for rent attaches from the commencement of the tenancy for the whole rent for the entire term on all the property of the tenant which enjoys the protection of the premises, so long as the property may be found and identified, provided it has not come into the hands of a bona fide purchaser without notice of the lien. Shapiro v. Thompson, 160 Ala. 363, 49 So. 391; Abraham v. Nicrosi, 87 Ala. 173, 6 So. 293. The lien of a landlord is superior to a subsequently executed mortgage. Code, § 8814; Gillespie v. McClesky, 160 Ala. 289, 49 So. 362; Payne v. Boutwell, 26 Ala. App. 573, 164 So. 753. To constitute a tenancy from month to month a special agreement to that effect may be made or the tenancy may be implied from the manner in which the rent is paid. Thus a lease for an indefinite time with monthly rent reserved creates a tenancy from month to month. 35 C.J. 1106; see Fields v. Southeastern Fuel Co., 233 Ala. 437, 172 So. 257. A tenancy from month to month is a continuing one and not a new letting at the beginning of each month. 35 C.J. 1105. Where a lease is from month to month it does not terminate by a mere lapse of time and neither party can terminate it without notice to the other in advance for the time required by law. 35 C.J. 1116; Harris v. Hill, 190 Ala. 589, 67 So. 284; Code, § 8822 (Amdt.Acts 1932, p. 14); Eddins v. Galloway Coal Co., 205 Ala. 361, 87 So. 557. Sustaining demurrer to a bill as a whole is error if any one of the bill's aspects presents a case for equitable relief. 8 Alabama Digest, Equity, p. 529, 232, and cases cited; Hanover Fire Ins. Co. v. Street, 228 Ala. 677, 154 So. 816; Roberts v. Ferguson, 226 Ala. 594, 147 So. 894. A demurrer to the bill and each paragraph, followed by assignments, is merely one to the bill as a whole. A partial demurrer should clearly point out the part to which it is directed. 21 C.J. 442; 8 Alabama Digest, Equity, p. 528, 231, 232, and cases cited; National Union F. Ins. Co. v. Lassetter, 224 Ala. 649, 141 So. 645; Abrams v. Abrams, 225 Ala. 622, 144 So. 828. The matter of a merger of the landlord's lien in the title, by reason of the delivery of the property to complainant, is one of intention, and is not to be presumed where the merger is against the interests of the lien holder. Wilson v. Windham, 206 Ala. 427, 90 So. 791; Chase v. Van Meter, 140 Ind. 321, 39 N.E. 455; 40 C.J. 650, § 20.
A. W. Stewart, of Marion, and Pitts Pitts, of Selma, for appellees.
The bill alleges that respondent Thatcher delivered the property to complainant, and at the time of filing the bill complainant was in possession. From aught appearing the property was delivered and accepted in satisfaction of any claim for rent. Bill to establish a lien for rent on such property cannot, therefore, be maintained. Equity has no jurisdiction to protect or quiet right or title to personal property. Bailey v. Folson, 207 Ala. 329, 93 So. 479; Mobile Towing Wrecking Co. v. Hartwell, 206 Ala. 7, 89 So. 446. The bill clearly shows a rental by the month; that at the time of execution of the mortgage to respondent Christian all rent, or virtually all of it, had been paid, and that aught appearing, complainant had actual knowledge of the execution and delivery of the mortgage, as well as constructive notice by the record. The mortgage being taken with the knowledge of complainant, equity would require complainant not to permit accumulation of rents by the month by agreement with the tenant and thus destroy the mortgage. Rent subsequent to the mortgage was subordinate to the mortgage lien. The tenancy shown is a reletting at the beginning of each successive month. The bill is not sufficient as one for a declaratory judgment. 35 C.J. 1097; Teal v. Mixon, 233 Ala. 23, 169 So. 477.
The appeal is from a decree sustaining demurrers to a bill in equity.
The bill was filed to enforce a lien for rent of a storehouse (Code, § 8814); and to adjust the priorities between the landlord's lien and the lien of a mortgagee acquired pending the tenancy.
The bill avers that from September 1, 1937, to April 1, 1938, the store building was occupied by the "tenant of complainant at a monthly rental of $35 per month payable monthly on the first day of each month." That during the time the tenant became indebted to complainant for rent in the sum of $245, had paid thereon $50, leaving the balance due and unpaid; that on termination of the lease the tenant delivered to the landlord the goods, furniture, etc., upon which the lien is claimed; that while the property was on the premises, some five weeks after the tenancy began, the tenant gave a mortgage thereon to respondent Lucy Christian, who claims a lien superior to that of complainant.
The theory of the demurrers is that the bill shows no continuous rental, but a new rental for each successive month. That the landlord's lien having priority over the mortgage can extend only to the rent accrued up to the date the mortgage was recorded; or, in any event, to cover the month during which complainant had actual notice of the mortgage; that if the tenancy was at will, the landlord could not let rents accumulate against the property thus destroying the mortgagee's security after notice thereof. The bill was silent as to actual notice; but the insistence is the bill should aver all the facts upon which priority is claimed, and is to be construed most strongly against the pleader. The bill does not aver a tenancy for a term fixed in advance for the period during which the rent accrued.
But it does aver a continuous tenancy upon a monthly rental basis. This is a tenancy at will, commonly called a tenancy from month to month. Such a tenancy is continuous until terminated by notice to quit. Harris v. Hill, 190 Ala. 589, 67 So. 284; Eddins v. Galloway Coal Co., 205 Ala. 361, 87 So. 557; Code, § 8822 (Amended Gen.Acts 1932, Ex.Sess., p. 14); 35 C.J. 1105, § 303.
It has long been settled that the landlord's lien attaches upon goods and wares of the tenant enjoying the protection of the premises for the rent accruing for the full term of the lease. Nicrosi v. Roswald, 113 Ala. 592, 21 So. 338; Andrews Manufacturing Co. v. Porter, 112 Ala. 381, 20 So. 475; Ex Parte Barnes, 84 Ala. 540, 4 So. 769; Shapiro v. Thompson, 160 Ala. 363, 367, 49 So. 391; Scott v. Renfro, 106 Ala. 611, 14 So. 556.
We think clear under the averments of the bill the landlord's lien attached when the goods went upon the premises as security for the rent of the entire period of the tenancy from month to month.
It follows the mortgage given upon property then on the premises and subject to the lien was subordinate to such lien.
True, of course, the landlord could not by a new rental after the mortgage was of record, create a lien for a new term and acquire a superior lien for the rent of such new term.
But the mortgagee could not complain at her carrying out the terms of her existing rental contract; and, therefore, cannot complain that her security was thereby reduced. She could not demand of her to collect her rent promptly, or else terminate the tenancy at will. She took only such security as the tenant could give, a lien subject to all the priorities in favor of the landlord to accrue under the existing tenancy.
It is perhaps appropriate to call attention to the difference between this case and cases of conditional sale contracts, or purchase money mortgages, wherein title never passed to the tenant except in so far as such titles were void under recording statutes. In such cases, we have held the landlord's lien cannot take priority except as to rent accrued before actual notice of the state of the tenant's title. Isbell-Hallmark Furniture Co. v. Sitz, 217 Ala. 51, 114 So. 678.
The fact that the bill avers the tenant delivered to complainant the possession of the chattels on which she seeks to enforce her lien does not stamp this as a suit to quiet title to personalty, as in Bailey v. Folsom, Tax Collector et al., 207 Ala. 329, 93 So. 479.
The bill by direct averments and prayer seeks to enforce complainant's landlord's lien and to adjust priorities between the landlord's lien and the mortgage lien, matters of well known equity jurisdiction.
Whether the bill avers an actual controversy, a justiciable issue under the Declaratory Judgment Law, is of no consequence on this appeal. If the demurrer to that aspect of the bill was well taken the decree should have been so limited.
Sustaining demurrers going to the equity of the bill as a whole is error if the bill has equity in any aspect. Here the bill has equity under the general powers of courts of equity.
Reversed and remanded.
ANDERSON, C. J., and GARDNER and FOSTER, JJ., concur.