The complaint, amended by striking out the first count, shows a suit in assumpsit for money had and received, brought by the appellee against the appellant. The ground of the action is, that the defendant purchased cotton from the plaintiff’s tenant, with knowledge of her lien as landlord, and appropriated it to his own use, when there had been no payment or no satisfaction of her rent. The court charged the jury that, under the facts thus stated, if the defendant knew the rent had not been paid, and had sold the cotton when the suit was instituted, the plaintiff was entitled to recover the amount of rent unpaid, or the price for which the cotton sold, if less than the rent due.
This charge is in conflict with the decision of Dulany v. Dickinson, 12 Ala. 601. The court there said, that Thompson v. Spinks (12 Ala. 155) was a decisive authority against the maintenance of the action; that the landlord’s lien was not such a right of possession or property as would support trespass, and, consequently, a waiver of the tort, and recovery as upon contract: that as no tort was committed on the plaintiff, *151and no contract, express or implied, to pay the rent could be raised against the purchaser from the tenant, assumpsit could not be maintained to recover the value of the rent. Thompson v. Merriman (15 Ala. 166) is not contradictory of this, because the law required the sheriff to pay the landlord as much as one year’s rent, as the condition upon which he might take the goods. This requisition is the very essence of the implied promise.
The statute, in giving the lien, prescribes the manner of its enforcement, to wit, attachment to be levied on the crop in the possession of the tenant, or any one holding it in his right, or in the possession of a purchaser from him with notice of the lien of the landlord. R. C. §§ 2961, 2963; Hunter v. Morrison, at June term, 1873.
The quere in Dulany v. Dickinson, supra, may have been suggested by a thought of the purchaser from the tenant disposing of the property before the attachment could be levied, with a view to defeat the landlord. If a case of disregard of the landlord’s rights, and fraudulent contrivance to prevent their enforcement, were shown, I think an action on the case would lie. But to hold that the landlord’s lien was such as a mortgage or execution would give, or as the vendor’s lien upon land is, would too seriously embarrass the sale of agricultural products, which are produced chiefly for sale and consumption, and are generally perishable in their character, and difficult of identification.
The judgment is reversed, and the cause remanded.