Opinion
No. 31009.
January 22, 1934. Suggestion of Error Overruled February 5, 1934.
1. EQUITY.
New parties cannot be introduced by cross-bill.
2. EQUITY.
Equity will not proceed with cause if complainant has failed to bring in necessary parties.
3. EQUITY.
"Necessary parties" include all persons who have such substantial interest that no complete decree can be made without directly affecting their interests or else leaving controversy in such condition that final determination may be inequitable.
4. LANDLORD AND TENANT.
Subtenant, by reason of liability of crops for rent, occupies relation of surety for rent due by tenant, and, in equity, may compel landlord to first resort to estate of tenant (Code 1930, section 2186).
5. LANDLORD AND TENANT.
Where one, without landlord's consent, purchased from tenant crops subject to lien, subtenant whose crops were seized by landlord might compel enforcement first of such purchaser's liability for value of crops so purchased.
6. EQUITY.
One proceeding in equity invokes equitable principles.
7. LANDLORD AND TENANT. In action by landlord against subtenant, answer asking that tenant and others be made parties held to sufficiently allege offer to pay if recovery was not obtained against such parties.
Subtenant set up in answer that one C. worked part of land leased by tenant and tenant worked part and both produced crops, value of which was more than amount of rent, and that third person had purchased all cotton produced by tenant and C. Subtenant further alleged that tenant owed him larger amount than sum claimed from him by plaintiff.
8. PLEADING.
In action by landlord against subtenant, answer asking that tenant and others be made parties held sufficiently definite, in absence of motions to make more specific as to crops produced by tenant and another and sold to third person, and as to how much tenant was indebted to defendant.
ON SUGGESTION OF ERROR.9. LANDLORD AND TENANT.
Landlord has lien for rent on all agricultural products of leased premises, including those produced by subtenant.
10. LANDLORD AND TENANT.
Persons purchasing crops produced on leased premises, either from tenant or subtenant, are affected with notice of rights and obligations existing between landlord, tenant and subtenant, and purchase crops subject thereto.
11. LANDLORD AND TENANT.
In action by landlord against subtenant involving rents due, main tenant and another subtenant would be proper parties, though possibly not necessary parties, in view of tenant's insolvency.
12. LANDLORD AND TENANT.
As regards claims for rent, rights and equities of subtenants held equal.
APPEAL from Circuit Court of Quitman County.
T.N. Gore, of Marks, for appellant.
It is the contention of the appellant that the complainant in this case had no right to proceed against him or subject his agricultural products to the payment of her claim for rent, in a suit against him without Steadmon and Curry and Garrett as parties to the suit, they being necessary parties.
All persons who are materially interested, legally or equitably, in the subject-matter of the suit ought to be made parties therein, either as complainants or as defendants.
Griffith's Mississippi Chancery Practice, secs. 102 and 109.
A subtenant has a right to resort to a court of equity to require the landlord to first resort to the interest of the principal lessee, in the agricultural products, for the satisfaction of the landlord's claim for rent, before being permitted to resort to the interest of the subtenant.
Applewhite v. Nelms et al., 14 So. 443, 71 Miss. 482.
The appellee had no right to bring this bill against the appellant, under the stated facts alleged in the original bill itself. The bill charges that this appellant was a subtenant on the leased premises. At common law, neither the subtenant nor his property was liable to the lessor of lands, in such a way as to give the lessor a right of action against him.
36 C.J. 379; 16 R.C.L., sec. 384, p. 879; Doty v. Heth, 52 Miss. 530.
It is true that section 2186 of the Code of 1930 gives the lessor of land in Mississippi a lien on the agricultural products of the leased premises, however and by whomsoever produced, to secure the payment of rent, etc. This section does not impose upon the subtenants of the lessee on any leased premises any obligation to pay any such debts contracted by the principal lessee either for rent or supplies, in favor of the landlord. The statute merely declares a lien on the agricultural products of the leased premises. This statute is in derogation of the common law and will not be construed as going further than the language used clearly manifests.
P.H. Lowrey, of Marks, for appellee.
Both the subtenant and the purchaser of cotton covered by the landlord's lien stand in the relation of sureties to the chief tenant. The court expressly holds that the subtenant is a surety to the extent of the value of his crop, and in the Applewhite case and the Scott Garrett case impliedly hold that the purchaser of crops stands in the same relation.
Applewhite v. Nelms, 71 Miss. 482, 14 So. 443; Scott Garrett v. Greenriver Lumber Company, 116 Miss. 524, 77 So. 309; Powell v. Tomlinson, 92 So. 226.
A large measure of discretion is allowed to the complainant whereby so long as he comes within the rule as to necessary parties he will not be required to sue those against whom he does not wish to proceed.
Griffith's Chancery Practice, secs. 102 and 109, pp. 109 and 114; Taylor v. Ware, 54 Miss. 42; 15 Enc. of Pleading and Practice, pp. 659 and 660; Horne v. Tartt, 76 Miss. 304; 21 R.C.L., pp. 1124 to 1128; 27 A. E. Enc. of Law, p. 463; 50 C.J. 231, 232.
In the case at bar the defendant (appellant) had no right to require the complainant (appellee) to amend her bill and make new parties in this case.
27 A. E. Enc. of Law, p. 463; 50 C.J. 232; 21 R.C.L. 1128; Horne v. Tartt, 76 Miss. 304.
Under the statute all crops raised on the leased premises by whomsoever made are liable to the landlord for the rent. Our court has repeatedly held that the original tenant is principal debtor and the subtenant the surety, and that all of the law of principal and surety applies.
Applewhite v. Nelms, 71 Miss. 482, 14 So. 443; Scott Garrett v. Greenriver Lbr. Co., 116 Miss. 524, 77 So. 309; Powell v. Tomlinson, 92 So. 226.
There is a wide distinction between proper parties and necessary parties in equity proceedings. The former term frequently embraces all who have any connection with the subject-matter of the litigation; the latter includes only those whose interest are to be effected by the decree sought.
Taylor v. Ware, 54 Miss. 42; Horne v. Tartt, 76 Miss. 304.
Appellee filed her bill on the equity side of the county court of Quitman county against appellant and the Citizens' Bank Trust Company of Marks to recover the sum of one hundred seventy-six dollars deposited by appellant with the bank, being the proceeds of the sale of cotton produced by him on land of appellee on which appellee had a landlord's lien for rent. There was a trial on bill, answer, and proofs, resulting in a decree in favor of appellee. On appeal by appellant to the circuit court, the decree of the county court was affirmed. From that decree appellant prosecutes this appeal.
Appellee set up in her bill, in substance, that she owned certain sixty acres of land in Quitman county which she leased for the year 1932 to Q.O. Steadman. The bill fails to set out the amount of rent Steadman was to pay for the land; the amount opposite the dollar mark being left blank. The bill charges that Steadman subrented part of the land for the same year to appellant, for which appellant agreed to pay him one hundred seventy-six dollars; that appellant produced crops on the land, including cotton, and out of the proceeds of the sale of the cotton, he deposited the sum of one hundred seventy-six dollars to his own credit in the Citizens' Bank Trust Company of Marks; that Steadman paid all the rent he agreed to pay appellee, except the sum of one hundred seventy-six dollars, the exact amount appellant had on deposit in the bank; that appellee was entitled to subject the one hundred seventy-six dollars in the bank to the payment of the balance due her by Steadman for rent, for the reason that she had a landlord's lien for Steadman's rent on the crops produced by appellant, of which the one hundred seventy-six dollars was a part of the proceeds.
Appellant answered the bill and made his answer a cross-bill seeking to make new parties. He set up in his answer that one Peter Curry worked part of these sixty acres of land leased by Steadman from appellee, and that Steadman worked part of it and both of them produced crops thereon, and that the value of such crops was more than sufficient to pay the rent Steadman agreed to pay appellee for the sixty acres of land; that one T.M. Garrott had purchased all the cotton produced on the land by Steadman and Curry. Appellant averred in his cross-bill that he objected to the one hundred seventy-six dollars he had placed in the bank being subjected to the payment of the balance of the rent due by Steadman to appellee, for the reason that Steadman owed him a larger amount than that sum, which amount he proposed to offset against the one hundred seventy-six dollars to that extent. In his cross-bill appellant prayed that Steadman, Curry, and Garrott be made parties to the cause as cross-defendants, and that appellee's remedy for her rent be first exhausted against Steadman, Curry, and Garrott before resorting to the one hundred seventy-six dollars which he had on deposit in the bank.
Appellee demurred to the answer and cross-bill. The demurrer was sustained, and properly so, upon the ground that new parties cannot be introduced into a cause by a cross-bill. Griffith's Chancery Practice, sec. 382; Ladner v. Ogden, 31 Miss. 332; Bishop v. Miller, 48 Miss. 369; Shaw v. Millsaps, 50 Miss. 380; Wright v. Frank, 61 Miss. 32; District Grand Lodge v. Leonard, 92 Miss. 777, 46 So. 532; Lemmon v. Dunn, 61 Miss. 210.
Appellant thereupon filed an answer to appellee's bill, admitting, in substance, the facts therein alleged, but not the conclusions of law. He further set up in his answer, as he had in his cross-bill, that his landlord, Steadman, owed him more than the one hundred seventy-six dollars, which latter amount he had the right to credit on what Steadman owed him, for the reason that Steadman and Curry had produced more than enough crops on the leased land cultivated by them to pay the entire rent due by Steadman to appellee, that the cotton produced by them had been sold to T.M. Garrott, and that under the law it was the duty of appellee to exhaust her remedy for the balance due her by Steadman by proceeding against him and Curry and Garrott.
After the demurrer was sustained to the answer and cross-bill, appellant moved the court, by reason of the matters set up in his answer and cross-bill, to require the complainant to so amend her bill as to make Curry, Garrott, and Steadman parties to the cause, because they were necessary parties, in order to determine the rights and equities of all concerned. This motion was overruled by the court.
In its decree, the court awarded a recovery in favor of appellee against appellant and the Citizens' Bank Trust Company of the one hundred seventy-six dollars. The evidence, although more or less indefinite as to the amount of crops produced on the land by Steadman and Curry and the value of such crops purchased by Garrott, tended to show that they were of sufficient value to pay the balance of the rent due by Steadman to appellee.
The question in the case is whether or not the court erred in refusing to require appellee to so amend her bill as to make Steadman, Curry, and Garrott parties to the cause, and that question turns upon whether or not they were necessary parties. A court of equity will not proceed with a cause if the complainant has failed to bring in necessary parties. Griffith's Chancery Practice, sec. 109. Necessary parties include all persons who have such a substantial interest in the cause as that no "complete, practicable and executable final decree can be made without directly affecting their interest, or else leaving the controversy in such a condition that its final determination may be wholly inconsistent with equity and good conscience." Griffith's Chancery Practice, sec. 102.
If appellee had proceeded at law instead of in equity, under the authority of Applewhite v. Nelms, 71 Miss. 482, 14 So. 443, appellant would have had the right to resort to a court of equity making appellee, Steadman, Curry, and Garrott parties, and enjoining the action at law, and compelling appellee to exhaust her remedy against Steadman and Garrott to the extent of the value of the crops produced by Steadman and purchased by Garrott, and adjust the equities between appellant and Curry if the latter was also a subtenant of Steadman.
Section 2186, Code of 1930, gives the lessor of land a lien on all the agricultural products of the leased premises, however and by whomsoever produced, to secure the payment of rent, money, and supplies advanced the tenant. This section is a rescript of section 2495, Ann. Code of 1892, which was under consideration and construed in the Applewhite case. It was held in that case that, since the lien extended to all agricultural products of the leased premises, by whomsoever produced, a subtenant, by reason of the liability of his crop, and to the extent thereof, occupied the relation of a surety for the rent due by the tenant, and had the right, therefore, in a court of equity, to compel the landlord to first resort to the estate of the tenant and preserve whatever securities he had from the tenant, in order that the subtenant, whose crop was taken, might be subrogated thereto, and that where one who, without the landlord's consent, had purchased from the tenant crops subject to lien for rent, a subtenant whose crops had been seized by the landlord under such lien might in equity compel such a one first to enforce the liability of the purchaser for the value of the crop so purchased.
Appellee, instead of proceeding at law, proceeded in a court of equity. By doing so, she invoked equitable principles. The principles laid down in the Applewhite case apply in this case.
Appellee contends, however, that, as a condition precedent to making new parties, appellant should have offered to indemnify her by agreeing to pay whatever her principal, Steadman, had failed to pay on the rent due by him, citing 50 C.J., p. 232; 27 Am. Eng. Enc. of Law, p. 463; 21 R.C.L., p. 1128. We think appellant fully complied with that requirement in his answer. His answer plainly meant, although not stated in so many words, that, if he was not entitled to drive appellee off of the proceeds of his crops onto the crops produced by Steadman and Curry, he was willing for her to have a decree for the one hundred seventy-six dollars in the bank, which was the balance of the rent due appellee by Steadman. This was the only indemnity required of appellant.
Appellee contends further that appellant's answer and his evidence were too indefinite as to the crops produced by Steadman and Curry and sold to Garrott and too indefinite as to how much Steadman was indebted to appellant. We think the allegations of the answer were sufficient in the absence of a motion by appellee to make them more specific. The result is, we are of opinion the motion for new parties should have been sustained.
Reversed and remanded.
ON SUGGESTION OF ERROR.
Under the statute Mrs. Burns had a lien for the rent her tenant Steadman agreed to pay her on all the agricultural products of the leased premises by whomsoever produced. That means, of course, that she had a lien on all the agricultural products produced on the leased premises by Steadman, her tenant, and also on all the agricultural products produced thereon by Steadman's subtenants, Hooks and Curry. Applying the principles laid down in the Applewhite Case, 71 Miss. 482, 14 So. 443, by reason of the liability of their crops to the lien, and to the extent of such liability, the subtenants, Hooks and Curry, occupied the relation of sureties for the rent due by Steadman to Mrs. Burns; and in equity had the right to compel Mrs. Burns to resort first to the crops produced by Steadman, the principal, and preserve whatever securities she had from Steadman for the benefit of the subtenants. All persons purchasing the crops, or any part thereof, produced on the leased premises either from the main tenant or the subtenants, are affected with notice, under the statute, of those rights and obligations existing between the landlord, the main tenant, and the subtenants, and they purchase the crops subject thereto.
In a court of equity Hooks stands exactly as if he had paid the rent he was due Steadman. He had agreed to pay Steadman one hundred seventy-six dollars for that part of the land he cultivated. He set up in his answer that Steadman owed him more than that amount; therefore, he claimed and sought the right to offset what he was due Steadman against a like amount of the indebtedness Steadman was due him. It is true the facts are not very well pleaded by appellant, Hooks, in his answer, nor is the evidence in the record satisfactory in every respect; nevertheless, we think there is sufficient merit in the appeal to require the case to go back. Probably on another trial those defects will be remedied. It may be that Steadman, on account of his insolvency, and Curry, also, are not necessary parties; nevertheless, they would be proper parties. We did not intend to be understood as holding Curry's rights and equities subordinate to those of appellant. Under the same facts and circumstances they would be exactly the same, because they were both subtenants.
Suggestion of error overruled.