
    CARWILE et al. v. BRYSON et al.
    (No. 6539.)
    (Court of Civil Appeals of Texas. Austin.
    March 28, 1923.
    Rehearing Denied May 2, 1923.)
    • Landlord and tenant <®b>328 (3) — Cotton left in open yard not stored in “warehouse?’ within landlord’s lien statute.
    ■ Where a farm tenant had agreed to pay one-fourth of the cotton raised as rent, but removed all the cotton from the premises and had it weighed by a public weigher who left it in an open space on the public school grounds which was used as a cotton yard, and where it remained more than 30 days before it was sold, the landlord’s lien, under Vernon’s Ann. Civ. St. Supp. 1918, art. 7827u, was waived, the cotton yard not being a “warehouse” within such statute, since a warehouse must be construed to be a house of some character.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second' Seriés, Warehouse.]
    Appeal from McLennan County Court; Giles P. Lester, Judge'.
    Action by N. P. Bryson and others against R. C. Carwile and others. Judgment for plaintiff, and defendants appeal.
    Affirmed in part, and in part reversed and rendered.
    Bryan & Maxwell, of Waco, for appellants.
    Witt, Terrell & Witt, of Waco, for appel-lees.
   Findings of Fact.

JENKINS, J.

Appellees owned a farm in McLennan county, which they rented to R. C. Carwile for the year 1920 under an agreement for one-fourth of the cotton as rent. Carwile grew on the premises 28 and a fraction bales of cotton. He owed as rentals $576.93, but did not pay the same. Carwile had the cotton ginned, an<^ immediately hauled it to Axtell, and had it weighed by a public weigher. It was left in the cotton yard used by the public weigher. The cotton yard was an open space on. the public school ground. The public weigher issued certificates as each bale was weighed, in the following form:

“Axtell, 9/14/1920.'
“Weighed for R. C. Carwile, of-, Texas, one bale of cotton, consigned to -, of -, Texas. Charges, -. Bonded gin No. 1757; gin bale No. 225; gin weight, 560; weigher’s No. O; weigher’s weight, 556; condition, O. K.”

These certificates were dated from some time in August to some time in October. The certificates were deposited by Carwile with appellant First- State Bank of Mt. Calm. About the 14th of December, 1920, the cashier of the bank, at the request of Carwile, sold the cotton to appellant W. J. Jarvis. The money was deposited in the bank to the credit of Carwile, and drawn out by him, three-fourths of it upon a cheek in favor of appellant bank, and one-fourth in favor of another bank.

Appellees brought suit against the tenant .Carwile to recover the amount of rent due, and also against the First State Bank of Mt. Calm and W. J. JarVis, for conversion of the cotton. Judgment was rendered in favor of appellees for $576.93 against Carwile for rent, and the same amount against the bank and Jarvis for conversion.

Opinion.

A number of issues are raised on this appeal, but we do not think it necessary to decide but one, and that is: Had the cotton been off of the premises of appellees for more than 30 days at the time it was sold?

The undisputed proof shows that more than 30 days had elapsed after the cotton had been left in the cotton yard and before it was sold. It is the contention of appellees that the landlord’s lien was not waived by this fact, for the reason that Vernon’s Ann. Civ. St. Supp. 1918, art. 7827u, provides as follows:

‘The landlord’s lien on cotton or other farm products, shall continue so long as the same are on storage in any warehouse, whether the same be a warehouse operated under this act, or a private warehouse, provided a negotiable receipt has not been issued therefor.”

We do not think the receipt issued by the weigher is a negotiable receipt; but' also we do not think that the cotton yard was a warehouse within the meaning of said statute. In the absence of a statutory definition, a warehouse must be construed to be a house of some character. Words and Phrases, vol. 8, pp. 7389, 7390. Open public school grounds are not a house. The landlord’s lien did not exist after the expiration of 30 days from the time the cotton was deposited in the weigh-er’s cotton yard.

Carwile did not appeal; and hence the judgment as to him will be affirmed.

For the reasons stated, the judgment will be reversed as to the appellants First State Bank of Mt. Calm and W. J. Jarvis, and here rendered in their favor so that as to them the appellees take nothing.

Affirmed in part, and in part reversed and rendered. 
      
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