* Headnotes 1. Landlord and Tenant, 36 C.J., Section 1545 (1926 Anno); 2. Landlord and Tenant, 36 C.J., Section 1545 (1926 Anno). Appellee filed a bill in the chancery court against the appellant, a corporation, who owned a plantation in Coahoma county, Miss., which it is alleged had been leased for a period of three years to one Arthur Collier, at and for the sum of two thousand dollars per annum rent; that it had become necessary for the appellant to waive its lien in favor of some one who would furnish Collier for the purpose of making a crop and that appellant on the 26th day of February, 1923, signed a waiver of its lien to the extent of one thousand two hundred dollars for the year 1923 in order to enable the said Collier to obtain money and supplies, and that such waiver was signed and delivered by the appellant; that on the *Page 693 28th day of February, 1923, the appellee took a deed of trust on the crops grown by or for Collier on the said leased premises to secure two notes of six hundred dollars each, said deed of trust being on "all the crops of cotton, cotton seed, corn, and all other agricultural products planted and now being grown, and all such crops as may be planted and grown during the year 1923 on that land in said county" (describing the land) "and now being occupied, cultivated, or rented by the parties of the first part" (Collier and wife), "and on any and all other land now being rented or cultivated by the said party of the first part or which may be cultivated or rented by the said parties of the first part during the year 1923 in the county aforesaid; together with all rights, liens, and claims to and on said crops they may at any time have," etc.
The deed of trust also covered all farming implements of every kind and description, wagons, and live stock now in the possession of the parties of the first part, describing certain specific live stock therein. The notes and deed of trust matured as follows: The first note for six hundred dollars on October 1, 1923; and the second note for six hundred dollars matured on November 1, 1923.
It is further alleged that the complainant did advance to Collier the sum of one thousand two hundred dollars during the said year 1923 and money and supplies, etc., for use on said land and for making said crop, and that said deed of trust constituted a first lien on all crops grown on the said land during the said year to the extent of one thousand two hundred dollars. The bill then alleged on information and belief, that said Arthur Collier as tenant of the defendant during the year 1923 sub-rented the land or a part of it to one Will Mix at and for the sum of five hundred dollars taking a promissory note of the said Will Mix for the said amount, and that he thereafter delivered the said note to the said defendant.
"The complainant is further advised that the said promissory note of five hundred dollars has been paid to *Page 694 the defendant out of the proceeds of cotton grown upon said lands during the year 1923, and on which this complainant then held a prior lien by virtue of its said trust deed and the written waiver of the defendant hereinbefore mentioned." It is further alleged that, unless the defendant is compelled to respond to the complainant in the sum of five hundred dollars collected by it from the sale of the crops grown on said lands, that it will be unable to enforce the collection of unpaid account for money advanced and supplies furnished to the said Collier during the year 1923 amounting to one thousand two hundred dollars, as it will require the said sum of five hundred dollars and the proceeds of the sale of all other property covered by its said trust deed to fully satisfy the said indebtedness, if in fact the said sum of five hundred dollars and all other property shall be sufficient at all for said purpose. It was then alleged that the defendant is indebted to the complainant in the sum of five hundred dollars which the defendant had refused to pay and prayed for an attachment against the plantation and property of the defendant in Coahoma county, Miss., the defendant being a nonresident corporation of New Orleans, La., and for process, and prays upon final hearing for a decree ordering the sale of the said lands as may be necessary for the satisfaction of said indebtedness, and for general relief.
The bill was filed on the 17th day of October, 1923. Process was returnable to the chancery court of Coahoma county on the third Monday of November, 1923. The bill was demurred to by the defendant upon the ground: first that the bill did not state a cause of action; second, that the bill proceeds on the theory that defendant has converted certain property in which complainant had an interest, whereas, the facts show, as set out in the bill, that he had no right, title or interest in and to the five hundred dollars paid by Will Mix to defendants, if such payment was made; third, that the bill does not show that defendant had any knowledge from what source the *Page 695 five hundred dollars charged to have been paid by Will Mix was derived; fourth, the bill does not show that the complainant, Delta Grocery Cotton Company, had any claim or lien on cotton raised by Will Mix, or that the cotton which was sold was in any wise subject to the deed of trust. The demurrer was overruled and an appeal granted to settle the principles of the case.
It will be noted from the statement of facts that the bill was filed before the maturity of the second note, and that the bill fails to allege that complainant had resorted to the other cotton grown upon the leased premises, if any, and it was not stated that there was not other cotton grown hereon, nor how much agricultural products remained on the place in the hands or under the control of Collier, and does not show that the personal property embraced in the deed of trust was resorted to, and if it was resorted to, how much it brought, nor how much of the five hundred dollars, if any, would be required after exhausting all of the other property of the main tenant Collier, under the deed of trust.
We think under the allegations of the bill and the exhibits that complainant had an equitable assignment of the note that Mix gave Collier, and that it had a prior lien to the extent of one thousand two hundred dollars on all products grown by or for Collier on the said place. The clause in the deed of trust, "together with all rights, liens, and claims to and on said crops they may at any time have," was sufficient to convey to the complainant Collier's lien upon the crops of Mix for the five hundred dollars rent, and that as the rent was on the place leased by the defendant to Collier, which it waived in favor of the complainant to the extent of one thousand, two hundred dollars would give complainant a right to prior satisfaction, but before it could resort to suit against the appellant it must first resort to the crops grown by Collier on the premises and to the other property conveyed in the deed of trust. It must apply the first moneys received to the liquidation of the one thousand two hundred dollars authorized by the waiver. As stated the *Page 696 bill does not show that complainant had exhausted its recourse to Collier's crop and Collier's property conveyed in the deed of trust, before resorting to suit against the appellant. We think, therefore, that the bill was prematurely filed; that it did not state the necessary facts to show its right of action against the defendant; and that the demurrer should have been sustained.
The judgment will, therefore, be reversed, and the demurrer sustained, and the cause remanded with leave to the complainant to file an amended bill or to amend its bill, so as to conform to the views herein expressed.
Reversed and remanded.
* Headnote 1. Chattel Mortgages, 11 C.J., Section 176 (1926 Anno).