
    GOVERNOR, Use, &c. vs. DAVIS.
    1. An execution, 'which is levied on a crop of cotton after, it has been removed from the rented premises on -which it was raised, and stored in a warehouse by the tenant, is entitled to preference over an attachment subsequently levied on it at the suit of the landlord for the rent of the premises, the former levy being made iu ignorance of the landlord’s lien, both on the part of the sheriff and the execution creditor.
    ERROR to the Circuit Court of Pickens.
    Tried before tbe Hon. Vm. R. Smith.
    This was an action of debt instituted in the name of tbe Governor, for tbe use of Bird Ivey, against tbe defendant in error, on bis official bond as sheriff of Pickens county. Tbe plaintiff proved that an attachment, at tbe suit of himself against one "Wallis, bad come to tbe bands of tbe defendant, and bad been by bim levied on twenty-three bales of cotton, tbe property of said Wallis; tbat tbe cotton was raised on certain premises wbicb said Wallis bad rented from plaintiff, and tbat tbe attachment snit was founded on a note wbicb bad been given for tbe rent; and that tbe defendant bad failed and neglected to malre tbe money on an execution issued on tbe judgment wbicb be afterwards recovered in tbe suit. Tbe defendant, to discharge himself, proved tbat, before tbe - attachment came to bis bands, and after said Wallis bad removed tbe cotton from tbe rented premises, and stored it in a warehouse for shipment, be bad levied two executions against Wallis on tbe cotton, and bad advertised it for sale, and tbat tbe cotton was afterwards sold, and tbe proceeds of sale applied to the satisfaction of these executions. Tbe court charged tbe jury in substance, tbat tbe money was properly applied, under this state of facts,' to tbe satisfaction of tbe executions.
    HUNTINGTON, for plaintiff in error.
    Tbe only authorities to wbicb I deem it necessary to call the court’s attention, are Clay’s Digest, Title Rent, and Dula-ney v. Dickerson, 12 Ala. 601.
    I contend tbat tbe affirmance of this judgment would be a practical abrogation of tbe statute. Tbe idea tbat tbe removal of tbe crop changes tbe landlord’s right, is one borrowed from tbe Stat. 8 Ann. c. 14, § 1, (found in Arcbbold’s Landlord and Tenant, Law Li. top page 235) and tbe constructions of it by tbe courts. Tbat statute provides, tbat tbe party plaintiff, before the removal of tbe goods from tbe premises under execution or extent, shall .pay tbe rent to tbe landlord, with a proviso not touching this case. Of course, if tbe goods are once removed by tbe tenant, tbe creditor seizing them cannot pay before removal. There is, neither in England nor New York, any process of attachment given to tbe landlord. Not tbe party, but tbe sheriff is tbe one deemed liable to tbe landlord, and tbe remedy, if be he does not pay tbe rent, is to rule bim. In a case where be desires the advice of tbe court, be may retain and seek instructions. 2 Johns. 478. Here we have, first, a statute after tbat of Anne, above referred to, and another one providing for tbe enforcement of tbe landlord’s lien by tbe process of attachment, wbicb can be issued after tbe crop is removed, and evidently goes upon tbe principle that tbe party shall first be paid who, by tbe lease of bis land, has enabled tbe tenant to provide means for bis own support and that of bis family, and often a surplus for bis creditors. Take away this right, or fail to give it due force and effect, and public policy as well as public law would be countervened, by tbe difficulty of tbe poorer class of citizens obtaining land to cultivate.
    As to tbe practice in England and New York under tbe statute of Anne, see 1 M. & S. 244; 18 Johns. 1; 2 ib. 478.
    Bliss & BaldwiN, contra.
    
    Referred to Clay’s Digest, 210, § 45; ib. 506, § 3; Frazier v. Thomas, 6 Ala. 169; Otey, Adm’r v. Moore, 17 ib. 280; 13 N. Hamp. 46.
   CHILTON, J.

Tbe only question in this case is, whether a sheriff who levies an execution upon a crop grown on rented premises, after it has been removed from tbe premises and deposited in a warehouse for shipment on account of tbe tenant, and subsequently levies an attachment for tbe rent at tbe suit of tbe landlord upon tbe same property, is bound, upon tbe sale of such crop, to apply tbe proceeds first to tbe payment of tbe rent.

There is nothing in this cáse showing that there was any collusion between tbe creditor whose execution was levied, and tbe tenant, or that at tbe time of tbe levy, either the execution creditor, or tbe sheriff, bad notice that tbe cotton levied on was grown upon rented premises, or that there was rent due to tbe landlord. Tbe tenant, himself, removed tbe cotton, and after it was removed, tbe execution was levied in good faith upon it. These facts distinguish this case from those relied upon by tbe counsel for tbe plaintiff in error. It is said in Dulany v. Dickerson, 12 Ala. Rep. 601, “that tbe statute gives tbe landlord an effectual means of recovering bis rent, by declaring a lien upon tbe crop, forbidding its removal until tbe rent is paid, and giving tbe right to levy an attachment upon it, wbicb may doubtless be done, though tbe crop may be removed, and is in tbe bands of a purchaser from tbe tenant, if he purchased with knowledge of the lien of the landlord.” In tbat case, the purchaser from the tenant removed the crop, and was informed of the lien, consequently he might well have been regarded as purchasing subject to the lien. In this case, the facts are different: there is no proof showing that the" creditor, whose execution was levied, had notice of the lien at the time of the levy.

The uniform construction placed by the English courts upon the statute of 8 Anne, c. 14, § 1, which is not unlike our own, is, that when the tenant removes the crop off the rented premises, the landlord’s lien is gone. It is supposed that, as the process of attachment is given by our statute to the landlord, by which he may follow and levy upon the crop, the lien is not affected by the removal, as was the case under the English statute. But we think this summary proceeding was not designed to extend the lien, to the detriment of bona fide purchasers without knowledge, either actual or constructive, of the existence of such lien; nor was it intended to overrride other liens bona fide acquired upon the property, and which .attached after its removal from the rented premises. The statute which says, the rent shall be exempt until the same may have been paid, &c., (Clay’s Big. 506, § 6) does not affect the case before us. The rents there referred to, evidently mean the portion of the crop to which the landlord is entitled under the contract to receive as his share, and has no application to a case where the monied rent is reserved, instead of .a specified portion of the crop.

We think the lien of the execution creditor, under the facts of this case, is to be preferred, and it follows that the judgment of the Circuit Court must be affirmed.  