Brief for appellees.

contrary to public policy to extend such a secret lien to every holder of a rent-claim.

A purchaser of cotton might by diligence ascertain from the landlord if his rent has been satisfied, but it would greatly hamper commerce if the buyer must, especially under our system of farming, ascertain who is the holder of a negotiated rent note, and whether it is paid. Often there are as many as a hundred notes given for rent of one plantation by tenants, and perhaps all of these have been nogotiated. If the buyers were assured by landlord and tenant that the note had been paid, this would not estop or affect an assignee, if it were not in fact paid but outstanding. Or if the tenant produced the note, duly satisfied, this would not be assurance that it was the only rent note he owed.

The assignability of a mechanic's lien is not a parallel case. Davis v. Bilsland, 18 Wall. 659.

There is no reason of public policy why a mechanic's lien should not be held assignable. To so hold opens no door for fraud, and the rights of innocent purchasers are protected, as the lien does not bind them unless of record.

We know of no lien so omnipotent, notice of which exists merely from the relation of the parties, that is held to be so assignable. In this case there was a written lease which was not assigned, and the relation of landlord and tenant has not changed. Even in Taylor v. Nelson, 54 Miss. 524 (which is not an authority under the present statute), there was an assignment of the rent and contract of the lessees. If "it is just to assume that the legislature in conferring a right and providing a remedy for its enforcement gave the only right or remedy intended to be enjoyed by the object of its solicitude" (Campbell, J., in Wooten v. Gwin), is it not fair to presume that the remedy was the measure of the right?

Appellants, at best, were only the indorsees of the note in the usual course of business. An equitable lien will not pass by the transfer of the note representing the lien debt. Jones on Liens 991. Is there better reason for holding that this secret lien so passes? We admit this position to be debatable, but upon our second position we rest confidently.

Brief for appellees.

2. In fact, no assignment of the note and lien was made. There was no transfer of the note from Johnson to appellants; they did not purchase the note from him, nor did he deposit it with them, as a live thing, collateral to the debt of Moyses & Co. He simply gave up the note to the maker of it. He "surrendered" it. The use of this word is significant of Johnson's intention. In the first place it might be construed as limiting his liability as indorser, and then his letter to them apprised them, not that he assigned the note or indorsed it to them, but simply that Moyses & Co. had come by the note honestly.

Unless the note held by them was a live thing, representing a subsisting debt, it could carry no lien with it. If the note had been assigned by Johnson to appellants as collateral it would have evidenced a debt due, and if the main debt were paid, it would be returned to Johnson and the lien would remain as a security for the rent. But as they took it from Moyses & Co., who were the makers, and in the event of the payment of the principal debt they would have returned it to Moyses & Co. They had no transaction with Johnson. In other words, the lien existed, not for the purpose of securing the rent or rental note, but as a security for their debt. The consent of parties cannot raise a rental lien unless there is a debt for rent.

3. The testimony shows that the note had been paid by order, twelve hundred dollars in money and advances and a credit for the balance on the store books of Moyses & Co. The crops being well advanced and their condition apparently good, as a favor to Moyses & Co., Johnson accepted the credit at the store as a payment of the note due to him and surrendered the note to them. This being so, the landlord's lien was dead and could not be resuscitated. J. M. Jayne, for appellee, J. E. Negus.

The answer and exhibits of respondents, Moyses & Co., show that the several notes secured by mortgages turned over by them to appellants as collateral security have been paid by the delivery of cotton by the several mortgagors to Moyses & Co., and by them shipped to appellants. But if this were not true, it could not present a question to be decided between complainants and defendants,

Brief for appellees.

Negus, Pollock & Co., and Goldsmith Cotton and Provision Co. (except as to one bale of cotton), for none of the cotton purchased by them was covered by the mortgages held by appellants. As to the one bale, we hold there was no liability because the several debts secured by mortgage have been satisfied.

The only question in the case is whether appellants are entitled to enforce the statutory lien for rent, given to a landlord against a a tenant, so as to charge the cotton raised on the rented land and sold by Moyses & Co. to these appellees.

It may be true that a landlord may assign his claim for rent, and the assignee may enforce the lien in a court of chancery, yet we deny that in this case there was any assignment by the landlord, Johnson, of his rent or any part of it to appellants. He merely indorses the rent note in blank, and surrenders it to the tenant, accompanied by a letter which explains his meaning and limits his indorsement.

This note, accompanied by the letter, must be viewed as if the contents of the letter were written on the note. In the first place, Johnson did not deliver the note and letter to H. & C. Newman, but to the makers; secondly, the letter accompanying the note expressly says it was "surrendered" to Moyses & Co. The mention by Johnson in the letter of favors extended to him negatives the idea that he is to assign any interest on his rent. Why refer to the fact that the planting interests were well advanced, if he desired to make an assignment of the rent. It shows that Johnson, feeling that his rent was thus assured, desired to commend the prospect of a good crop for Moyses & Co., and they can show the surrender of the rent note. This will help their credit. They could use it as they saw fit, either with H. & C. Newman or any other factors, or they could burn it if they desired.

It cannot be said that Johnson assigned the rent note to appellants. Moyses & Co. had no power to assign it for Johnson, and no language was used which could effect such an assignment.

Assignments are usually expressed by the terms "transfer, set over, assign, convey, or grant, bargain, sell, or other words that show the intention of the parties to transfer." Bouvier Law Dict.

Opinion of the court.

The only word that would have to be construed to effect the assignment here is "surrendered," which means to yield up, or give up, and cannot be used to denote a transfer.

But the note is shown to have been paid at the time of its surrender, except as to two hundred and fifty dollars, and this was paid by a credit on Moyses & Co.'s books. In any event, appellants received much more cotton from the rented place than enough to pay the rent note, and the credit should have been applied to the rent note and its lien, if any exists. As to the rest of the cotton, not raised on the rented land, appellees are unaffected by the agreement by Moyses & Co. to ship it to appellants. An agreement to ship cotton confers no lien or right in it.

COOPER, J., delivered the opinion of the court.

In the year 1887 Johnson leased his plantation, known as Sligo," to Moyses & Co., at a rental of three thousand five hundred dollars, for which the tenants executed two promissory notes, each for one thousand seven hundred and fifty dollars, and due respectively on the 1st and 15th of November. Moyses &

Co. were then indebted to appellants in a considerable sum, and desired to secure other advances during that year. Appellants were unwilling to make such advances unless satisfactory security should be given for the payment of the debt then due and that to accrue. On the 18th of March Moyses & Co. presented to appellants one of the notes executed by them to Johnson, indorsed by him in blank, and also a letter written by Johnson to appellants, of which the following is a copy :

"MESSRS. H. & C. NEWMAN,

NEW ORLEANS, LA.

DEAR SIRS :

Messrs. Sam. Moyses & Co. having extended favors to me, and as their planting interests on my place is well advanced, I have, at their request, surrendered to them one of the two rental notes given by them to me for the rent of my plantation, which they are at liberty to use as they see fit.

Opinion of the court.

Moyses & Co. were conducting a mercantile business, and had secured from various customers mortgages upon crops to be grown to secure advances to be made during the year. It was accordingly agreed (and a written contract to that effect was entered into) that they should give to appellants their note for the sum of five thousand five hundred and seventy-three dollars and thirty-eight cents, due November 1, after date, which note should be then discounted by appellants, and the net proceeds placed to their credit, whereby the antecedent debt would be discharged and a balance left to their credit to be drawn against as occasion should require. The rent note indorsed by Johnson was deposited as security for the payment of this note of five thousand five hundred and seventy-three dollars and thirty-eight cents, and mortgages upon crops exeented by the customers of Moyses & Co. to the extent of two thousand dollars, were also deposited as further security. It is only necessary to say that among these mortgages was one executed by one Jones. By the contract between the parties, Moyses & Co. were to ship in season all the cotton grown by them on the Sligo place, as well as all other cotton controlled by them, and Newman & Co. were authorized to apply any payments made either to the note or to any other debt they might have against Moyses & Co.

During the cotton season Moyses & Co. shipped a considerable quantity of cotton to Newman & Co., some of it being of their crop grown on the Sligo place, some of it being cotton collected from the mortgagors in the assigned mortgages, and some of it cotton acquired by Moyses & Co. in their business as merchants. No distinction was made in the method of shipments as between the various lots, nor was Newman & Co. informed as to what part was received from the one source or the other. Drafts were drawn against the shipments so that at the end of the season almost the entire proceeds of all cotton shipped had been exhausted in the payment of such drafts and in payment of their running account accrued after the credit derived from the discount of the note for five thousand five hundred and seventy-three dollars and thirtyeight cents had been exhausted.