
    Ballantine and Kercheval vs. Greer and others.
    
    The landlord has a lien upon the crop raised by his tenant, for the payment of the rent due to him, by virtue of the act of 1825, ch. 21.
    Before a landlord can maintain a suit against a purchaser of the crop raised by his tenant, he must first obtain a judgment against the tenant for the amount of rent due to him.
    This was an action of assumpsit, brought to recover the value or proceeds of some cotton sold by a man by the name of Hancock, to Ballantine and Kercheval, the plaintiffs in error. The facts were these: Hancock rented from the ancestor of the defendants in error, a piece of land, and was to pay two dollars per acre for the part in cultivation, amounting to about twenty-five acres. . Upon this land he raised some cotton and corn. After he had gathered his cotton, he delivered it in the seed at a gin in the neighborhood, and took a receipt for the same, which receipt he afterwards sold to the plaintiffs in error. No action appears to have been brought against Hancock, by which the amount of the claim against him for rent had been ascertained.
    The circuit court was of opinion that such suit was unnecessary, and instructed the jury that by law the plaintiffs had a lien upon the cotton in the hands of the defendant f0r the amount of rent, unless they were of opinion the rent was paid. The jury found a verdict for the plaintiffs.
    
      D. Campbell, for the plaintiffs in error.
    
      J. Alexander, contra.
   Peck, J.

delivered the opinion of the court.

The lien on the crop is given by the act of 1825, ch. 21, and shall be preferred to all other debts. It is provided, “that the lien shall continue three months after the rent falls due, and until the decision of any suit that may be brought within that time for said rent.

Cotton receipts, by our acts of assembly, are made assignable. It is not pretended but that the rent was honestly purchased by the plaintiffs in error. We do not say that the cotton could not be followed for the rent due, if the purchasers had notice; but to be enabled to follow it a judgment should first have been had against Hancock. The question as to the rent due, and what portion had been paid, was attempted to be proved collaterally in this action; these were questions between others. The debt should have first been established by a suit, as contemplated by the act; and not having been so established, the evidence of accounts between the lessor and lessee, was inadmissible. This case illustrates the necessity of such a rule. Here the rent was to be paid at a certain rate per acre. The quantity to become due, depended upon a survey of the premises. There were accounts between the parties; improvements had been made, for which the lessee was to be paid, and he had paid a portion of the rent. And as the lessor, though he had the lien, could not sell the crop without a judgment first had, it follows as a consequence, without such mdgment, this suit was premature and untenable: lie could not seize tbe cotton without execution, and tor tbe same reason cannot have its value against these defendants. 2 Kent, 503.

A suit for tbe rent within the time specified in the act, might probably be such notice as would put persons upon enquiry; but without notice, if a purchaser of a negotiable cotton receipt should be made liable, it would be a means of practising fr.auds more injurious than any affecting lessors.

From any thing appearing to the contrary, this was a bona fide transfer. Liens created by acts of assembly, though they will be protected by the court, are not favored above all other demands; and certainly where the act of assembly supposes some act should be done to fix the lien, and render liable the subject it operates upon for the amount, that act must be performed by him setting up the lien. The general principle is so, and there is no reason for an exception in this case. See 2 Kent’s Commentaries, 498.

Judgment reversed.  