event, shown a "new way to pay old debts," and get good boot in the transaction. The judgment is affirmed.

JONES V. MILLSAPS et al. . (Supreme Court of Mississippi. Oct. 30, 1893.) LANDLORD AND TENANT-REPAIRS-IMPLIED Cove

NANT.

1. In a lease of the lower story of a building, the lessee's express covenant to repair the leased room to suit his particular business does not imply a covenant by the lessor to make general necessary repairs.

2. The lessor's retention, for his own use, of the upper story of a building, of which he leases the lower story, does not impose on him any duty to repair.

Appeal from circuit court, Hinds county; J. B. Chrisman, Judge.

Action by W. C. Jones against R. W. Millsaps and another for damages for failure to repair premises leased by them to plaintiff. Judgment for defendants. Plaintiff appeals. Affirmed.

E. E. Baldwin, for appellant. Brame & Alexander, for appellees.

If

WOODS, J. While the declaration, in some of its allegations, is somewhat indefinite or uncertain, yet we do not think it so indefinite or uncertain, as a whole, as that the precise nature of the complaint is not apparent. While parts of the language employed are involved or obscure, the pleading does nevertheless contain a statement of the facts constituting the cause of action, in ordinary language. Our statutes are designed to obviate the necessity for, and the use of, all technicalities in all pleadings, and to enable every litigant to have his complaint entertained and heard on his stating the facts constituting his cause of action in ordinary and concise language. irrelevant or redundant matter is inserted in the pleading, the opposite party should move to strike out such matter. If the allegations of the pleading are so indefinite or uncertain that the precise nature of the complaint is not apparent, on motion of the opposite party the court will cause the same to be made definite and certain, or, this failing, will strike the pleading from the files. Code 1892, § 704. On this branch of the case, and beyond these general observations, we think it proper only to add two particularizations, viz.: (1) The first special cause of demurrer is not well taken. On examination of the written contract we find that the lessee (the plaintiff below) covenants to make certain specific repairs and alterations in and upon the leased storeroom, and for other repairs that may be necessary, or charges which he may deem requisite. That all the repairs and alterations covenanted for on the lessee's part are limited to the leased storeroom is quite manifest. (2) The eight special grounds of demurrer are not maintainable. Reference

to the transcript before us shows that it is the "cost and carriage and value of the goods,"-damages which the schedule filed with the declaration contains. But this schedule was unnecessary, and this part of the declaration may be treated as surplusage. With this useless matter disregarded, we still find a distinct averment of the pleading that the plaintiff is injured and damaged to the value of $400.

We come now to the consideration of the real contention between the parties, presented in the last special cause of demurrer, and that is, to state it fairly and fully: Can the lessor, in this particular case of the leasing of the lower story to the plaintiff, with retention of the upper story in his own possession and use, be held liable for necessary repairs, in the absence of any cove nants to keep in repair imposed upon him by the written contract of lease, and in the absence of deceit, misrepresentation, or fraud? The general rule that a landlord, in the absence of express covenants in the contract of lease, and in the absence of deceit or mis representation, cannot be held liable on any implied warranty on his part for repairs, is not called in controversy by counsel for appellant, as we understand his argument. The correctness and the universality of the rule as stated are admitted; but the lease of a lower story by a landlord retaining the other parts of the building in his own possession and use presents a case exceptional to the general rule, it is contended. This position rests, as it appears to us, upon one of two grounds: (1) Either upon an implied covenant for repairs on the lessor's part, springing out of the written contract itself; or (2) upon the relationship of the parties to each other and to the leased premises. The subject is not free from difficulty, nor is there wanting eminent authority for both of the grounds just mentioned, of fixing liability upon the lessor. Let us examine these in order, and in the light of the authorities cited in support of them.

The first proposition is to fix liability for repairs upon the lessor, in the absence of any express covenants in the written contract of lease, on an implied covenant growing out of the lessee's express covenants to repair the leased storeroom. In the case at bar there are two ready answers to the contention: (1) The repairs and alterations covenanted for by the lessee are not to be supposed to refer to repairs of ordinary wear and tear. These were imposed by law, and needed no sanctions of covenant. They are, as is plainly to be seen in the contract, cove nants for extraordinary repairs or alterations, to be made for the peculiar accommodation of the lessees' business. And, (2) conclusively, to raise this implied covenant to repair by the lessor would be to introduce into the written contract of the parties a most important condition which they did not incorporate in it themselves when they re

duced their agreement to writing. It would amount to an essential modification by parol of a written contract. It would be, not the explanation by parol of an obscurity on the face of the contract, but the substitution of one contract for another,-a contract by parol for the written one made by the parties. The case of Bissell v. Lloyd, 100 Ill. 214, affords distinct support to the contention of appellant as to the implied covenant of the lessor to repair the portion of the building whose possession he retained, in order that the comfort or security of the tenant of the leased room might be maintained. But there is no attempt to fortify this conclusion of the supreme court of Illinois by reason or authority. It is the naked, dogmatic assertion of a court of last resort, and we decline to yield our assent to it.

The other ground of contention, viz. the liability for repairs on the part of the lessor in cases where a part, only, of the premises are leased, and the remainder retained by the landlord, because of the relationship of the parties to each other and to the property, seems to be clearly recognized in the case of Toole v. Beckett, 67 Me. 544. The decision and its reasoning are not satisfactory, and the vice of the opinion is that it confounds the passivity of the landlord with affirmative action on his part amounting to negligence. It overlooks the fundamental principle in all leases by which the lessor is made to "hand off" during the continu ance of the lease. He may not be required to affirmatively aid the tenant in repairs, and he may not affirmatively act inconsistently with his lessee's right to possession and enjoyment; and, so long as the lessor abstains from all action, he is within the line of his duty. The Maine case confounds negligence with nonintervention, and is unsound. A critical study of the case of Priest v. Nichols, 116 Mass. 401; Kirby v. Association, 14 Gray, 249, and Looney v. McLean, 129 Mass. 33,-the two former cited, and supposed to have been followed, by the court in 67 Me., and the last relied upon by appellant's counsel,-readily distinguishes them from the Maine case and the case at bar. The case of Kirby v. Association, 14 Gray, 249, determined that "the owner of a building leased in several tenements, who is bound to make all necessary repairs, and has control of the passageways and doors for that purpose, and who keeps the keys, and opens and closes the doors of portions of the building at times fixed by occupants, is not relieved from liability for injuries caused by defects in the building, or by the falling of snow and ice therefrom." The case, on its facts, does not bear the slightest semblance to the case at bar, nor is the opinion of the court authority for the proposition we are considering. The case of Priest v.

son.

Nichols, 116 Mass. 401, presents a clear case of negligence in affirmative action on the landlord's part. The landlord occupied the upper story, and negligently injured his tenant below by water escaping from a waste pipe and from an engine which the landlord used and had charge of. Here liability was imposed for negligence in affirmative action by the landlord in the use of his engine and waste pipe. The case of Looney v. McLean, 129 Mass. 33, held that a landlord who lets rooms in a tenement house to different tenants, with a right of way in common over a staircase, is bound to keep such staircase in repair; but that is not the case at bar. If the weight of authority is controlling, it will be ascertained, on examination, that the current is against liability of the lessor in such case as this. See Walker v. Gilbert, 2 Rob. (N. Y.) 214; Doupe v. Genin, 45 N. Y. 119; Ward v. Fagin, 101 Mo. 669, 14 S. W. 738; Cole v. McKey, 66 Wis. 500, 29 N. W. 279; Purcell v. English, 86 Ind. 34; Krueger v. Ferrant, 29 Minn. 385, 13 N. W. 158. This line of decisions rests upon sound reaThe general rule is firtaly established that no implied covenant for repairs can be raised against the lessor. The lessee cannot invoke an implied covenant of the landlord that the leased premises are fit and suitable for the lessee's business or use. The intending tenant must use his own faculties, and judge for himself if the premises he desires to lease are in repair, and are suitable for his use. If he wishes to protect himself against the haz ards of subsequently accruing accidents or defects requiring repairs, he must do so by proper covenants in his contract of lease. takes his leased premises for better or for worse, as an ancient authority aptly characterizes his taking. He takes the premises as he finds them, and he must return them, as nearly as possible, in like condition. This necessarily involves. his making repairs on the property during the term of his lease. And all this must be true-all this is truewhether he lease one room or six, the whole or a part of the house. If he rents the whole, the wisdom and necessity of his protecting himself in his contract by stipulating for repairs by his landlord appears to be not less, but greater, than if he rents a part, only. The rule extends to the whole premises, and to every part of the premises. The duty of the tenant to examine the premises, and protect himself by proper stipulations in his contract of lease if danger is suggested by his examination, is the same in case of the leasing of a whole or of a part, only. He cannot fix liability upon his lessor by some supposed implied cove nant to repair, when he had it in his power to create this covenant expressly in the written contract, and failed to do so. Affirmed.

He

BLUMENFELD et al. v. SEWARD et al. (Supreme Court of Mississippi. Jan. 1, 1894.) EXECUTION-LEVY ON PARTNER'S INTEREST--JUDGMENT LIEN-PRIORITIES.

1. A judgment creditor of a partner cannot take in execution any specific article of the partnership property, but must levy on the interest of the partner in the entire assets.

2. Where a creditor contracted to pay the operating expenses of his debtor's sawmill, and the cost of timber, and then to apply the profits to the payment of the debt, such creditor had a lien on the products of the mill superior to the rights of judgment creditors of the debtor.

Appeal from circuit court, Choctaw county; C. H. Campbell, Judge.

Proceedings to subject property of Blumenfeld & Fried to the judgment of Seward Bros. against Lewis & Son. From a judgment for Seward Bros., Blumenfeld & Fried appeal. Reversed.

Daniel & Richardson and Muldrow & Nash, for appellants. J. W. Barron, for appellees.

COOPER, J. The judgment in this cause must be reversed. There are two grounds of defense against the right of appellees to subject the property seized to their judgment, either of which is conclusive. The first is that the creditor of one member of a firm cannot take in execution any specific article of the partnership property, but must levy upon the interest of the partner in the entire assets. At common law this was effected by seizing the entire assets, which seizure dissolved the partnership, and the purchaser under execution became tenant in common with the other partners. Sanders v. Young, 31 Miss. 111. But by the Code of 1880. § 1770, (following the Codes of 1857 and 1871,) it is provided that, when a defendant in execution shall own or be entitled to an interest in any property not exclusively in his own possession, such interest may be levied on and sold by the sheriff without taking the property into his actual possession. And since he may levy without disturbing the possession of the other co-owners, he must do so. Willis v. Loeb, 59 Miss. 169. But if the appellees were creditors of the firm of Lewis & Son, there would have been no vendible interest in the property seized. The timber from which the ties were cut was bought and paid for by appellants, under an arrangement between them and Lewis & Son, by which the cost of the timber and the operating expenses of the saw mill were to be first paid, and the profits were to be applied by appellants to the payment of a debt they held against Lewis & Son. This debt far exceeded the value of the property seized, and since Lewis & Son could not recover the property without paying the debt for which it stands pledged, neither could their creditors. If the timber from which the ties were cut had been the property of Lewis & Son, a different question would be presented;

COOPER, J. The appellees exhibited their bill to cancel, as a cloud upon their title, a tax title asserted by appellant to the lands described in their bill. The complainants aver that they are the owners of the land in controversy, and this averment is denied by the defendants. We find nothing in the record sustaining this material and controverted assertion, and for this reason the question as to the validity of the tax title of the defendant becomes immaterial; for, regardless of its validity or invalidity, the complainants, who, from the record before us, are strangers to the original title, have no right to bring it in question. We cannot comprehend how the error of supposing that one proving no title may get relief in equity, in this class of cases, has survived through so many years against a uniform series of decisions, beginning in the year 1848. If anything can be considered settled by decision, it is that a complainant seeking to cancel the title of his adversary must show either a good legal or equitable title in himself. Taylor v. Strong, 10 Smedes & M. 63; Boyd v. Thornton, 13 Smedes & M. 338; Huntington v. Allen, 44 Miss. 654; Adams v. Harris, 47 Miss. 144; Walton v. Tusten, 49 Miss. 569; Handy v. Noonan, 51 Miss. 166; Cook v. Friley, 61 Miss. 1; Phelps v. Harris, 51 Miss. 789; Griffin v. Harrison, 52 Miss. 824; Harrill v. Robinson, 61 Miss. 153; Hart v. Bloomfield, 66 Miss. 101, 5 South. 620; Soria v. Stowe, 66 Miss. 615, 6 South. 317; Chiles v. Gallagher, 67 Miss. 413, 7 South. 208; Bank v. West, 67 Miss. 729, 7 South. 513. On the final hearing, the chancellor should have dismissed complainant's bill, which will be now done here; but, inasmuch as it may be that complainant has title, which failed to be proved by inadvertence. the dismissal will be without prejudice. Decree reversed, and bill dismissed.

by reason of the equity of the appellant it was the duty of the landlord to exhaust that security, or to preserve it unimpaired by any positive act on his part for appellant's benefit. As between Nelms on the one hand, and Dunson and Rodgers on the other, it would be but just that Nelms should maintain the equities of Dunson and Rodgers as between themselves by securing, if practicable, an equal payment of the rent from each; but there is no obligation, legal, equitable, or moral, on the appellant, to save Dunson harmless from the default of his codebtor, Rodgers. If Nelms had raised his lien upon the cotton of Dunson, and consented that he might sell it to Hawkins & McConnico, he could not go against them for its value, but to the extent of that value the appellant, the surety, would have been released. It does not appear that Nelms waived his lien upon Dunson's cotton, and Hawkins & McConnico are therefore liable to him for the value of the cotton they bought from Dunson, (Fason v. Johnson, 69 Miss. 371, 12 South. 446; Warren v. Jones, 70 Miss. 202, 14 South. 25;) and this liability of theirs is a security which will be preserved to appellant, the surety of Dunson. All the parties being now before the court, complete relief may be granted in the present suit. The court should have decreed that, out of the proceeds of appellant's property that has been seized, the balance due by him to Rodgers should be paid to Nelms; then that the property of Dunson seized under the distress should be exhausted in payment of the rent; after this, Hawkins & McConnico should have been required to pay the value of the cotton bought by them from Dunson; and, if a balance then remained due to Nelms, the crops of appellant should have been sold for its payment. The decree will be reversed, and cause remanded, to be proceeded with accordingly.

SURFACE WATER-ACQUISITION OF EASEMENTADVERSE USER.

1. Where surface water collected in a natural depression, partly on defendant's land, but mostly on plaintiff's, has been used by the latter for many years to float logs, his adverse user, for 10 years, of a dam to raise the water, gives him a right, as against defendant, to maintain the water at its artificial stage.

2. The fact that one may have strengthened or raised his dam, adversely maintained, during the limitation period, cannot affect his right to flood his neighbor's land to the stage established at the beginning of such period.

3. The occasional letting out of dammed water by the outlet does not destroy the continuity of user of the dam, as against one whose land is flooded thereby.

Appeal from chancery court, Coahoma county; W. R. Trigg, Chancellor.

Suit by J. L. Alcorn against W. R. Sadler for injunction against diversion of water.

From a decree entered, complainant appeals. Reversed.

The facts are more fully set out in the report of the former appeal. 5 South. 694.

J. W. & W. D. Cutrer, for appellant. D. A. Scott and Calhoon & Green, for appellee.

CAMPBELL, C. J. The report of this case, as presented on a former appeal, and decided, is contained in 66 Miss. 221, 5 South. 694, where a full and accurate statement of the case made by the bill and answer, prepared by the reporters, may be seen. The opinion of the court then delivered settled the principles of law applicable to the controversy, so far as it depended on the character of the body of water in dispute. The case was remanded for further investigation, and a vast mass of evidence has been accumulated, with the result of a decree authorizing Sadler to make his excavation, so as to rid his land in the reservoir, called a "cypress brake," of water put and kept on it by Alcorn's dam across the outlet, at the mouth of Shep's bayou, but not to draw off the water as it would be if the dam was not there. The decree recognizes, and rests on, the assumption that the depression or reservoir constituted a natural body of water, in its condition before the dam was constructed, and must be maintained to that extent, but that Sadler has the right to free his land from overflow caused by the dam. Alcorn alone appealed from this decree, and complains, not of the ruling on which it rests as to the character of the collection of water, which accords with his contention, but that the decree denies his claim to the continued enjoyment of his collection of water by reason of his dam; and the only question now presented for decision is as to Alcorn's right to maintain and continue the flow of water caused by his dam, undisturbed by the drainage proposed by Sadler. For nearly or quite 20 years before this suit the dam has existed, and Alcorn, with the actual or presumed knowledge of Sadler, has exercised the privilege of flowing that part of Sadler's land embraced in the depression or reservoir with water, for the purpose of maintaining a certain height. This user by Alcorn has been adverse, exclusive, continuous, uninterrupted, open, and notorious, and, in fact, was known to Sadler from an early day; and by this enjoyment Alcorn has acquired an easement in Sadler's land, covered thus by water, which cannot coexist with the right of Sadler to drain off the water so as to interfere with the right thus acquired by Alcorn. It is not possible to fix with accuracy the year when the dam was last heightened, but there is no room for doubt that, some 20 years before this suit was begun, the conditions as to increased water on Sadler's land were very much such as have continued ever since. The strengthening, or even heightening, the dam, from time to