#### Watson v. Johnson et al.

*Ijiest*— Landlords’ *for rent, superior to mortgagee’s.*

The lien of a landlord on the crop of his tenant for rent, is superior to that of a mortgagee

*Pleading and Practice*— new *matter.*

Under the Oode practice no reply is allowed setting up matter of defense only. The statute makes issue to matters of avoidance, and they must he proved.

APPEAL from *Ashley*Circuit in Chancery.

*Hon.--*Circuit Judge.

*Van Oilder,*for appellant.

English, C. J.:

The bill in this case was filed on the chancery side of the Circuit Court of Ashley county, in July 1877, by E. D. Watson, against A. L. Johnson and Isaac Cohen, to foreclose and enforce the lien of a mortgage upon cotton.

The bill alleged, in substance, that on the 29th day or February, 1876, defendant Johnson, executed to complainant a mortgage, to secure his then indebtedness, and also such advances as complainant might make to him during that year, whereby he conveyed to complainant, among other .things, the crop of cotton that he would raise on fifteen acres of ground on a place-in Ashley county, known as the Robert Daniel place — which mortgage was acknowledged and filed for registration in the recorder’s office of Ashley county on the day it was executed, and duly recorded, and is exhibited and made part of the complaint. °

That the mortgage was conditioned to be void if Johnson paid complainant all his indebtedness on or before the 1st of November, 1876, which he wholly failed to do.

That he was indebted to complainant in the sum of $162.46, for goods, wares and merchandise advanced to him upon the mortgage, as per bill of particulars made an exhibit.

*738That in the year 1876 there was grown and raised on the fifteen acres of land above described, gathered, ginned and baled 1 ,542 pounds of lint cotton or more ; and that defendant, Isaac Cohen, without consent of complainant, took possession of said cotton on or about the — day of February, 1877, and so disposed of the same as to put it out of the power of complainant to get possession thereof, and out of the reach of the process of the court. That th.e cotton, so disposed of by him, was of the value of about $1.80.50.

Prayer for decree against defendant, 'Johnson, for $162.46, etc. ; that the lien of the mortgage be declared and enforced against the cotton, etc., and for decree against Cohen for the sum due to complainant from Johnson.

Johnson did not answer the bill but made default.

Cohen answered, in substance, that ho knew nothing of the alleged transaction between complainant and Johnson, except from the statements of the bill.

■ That he had no certain knowledge as to the amount of cotton raised by Johnson on the Robert Daniel place in the year 1876. Denies that he took any cotton from complainant, with or without his consent. Admits that he did receive of Johnson three bales of cotton, produced on said place in the year 1876, but states that it was in payment of the rent for that year, and that the cotton did not weigh more than 1200 pounds, and was sold in New Orleans for the net sum of $105. That it was not necessary that he should have the consent of the complainant to enable him rightfully to receive said cotton. That he took the cotton as coming from Johnson to Julia A. Daniel, to discharge a debt which she owed respondent. That his connection with the whole affair was brought about in this way, and in no other manner : That is to say, the said Julia A. Daniel had rented to Johnson a portion of the Robert Daniel place (that part mentioned in the bill) for the year 1876, for the *739. um of $109, and taken bis note therefor. That she was desirous of purchasing goods and supplies of respondent during •said year, and to enable her to do so, she delivered to him said rent note for $109, as collateral security for such articles as •she might purchase of him. That in pursuance of this arrangement she bought of him more than $105 worth of goods and supplies. And in the mouth of October or November, 1876, Respondent carried the note to Johnson and demanded the rent, having with him Julia A. Daniel’s agent Joseph Daniel, and •Johnson, then and there delivered a lot of seed cotton to the respondent, which amounted to three bales of lint cotton, and ■respondent, under the directions of the agent of said Julia A. Daniel, then and there delivered up the rent note to Johnson, That the said cotton was-afterwards ginned aud baled by Johnson, and the three bales delivered at points named for shipment.

Respondent submits, that holding the rent note as collateral security for a subsisting debt, based (in the faith of the note, entitled him to receive said cotton, and that complainant had no manner of lien thereon, and ought not, in good conscience, to have a decree against him for any sum whatever.

The cause was heard upon bill and answer, and decree rendered against Johnson for $162.46, and the bill dismissed as to Cohen, and complainant appealed.

The lien of Mrs. Daniel upon the cotton, for rent, was paramount to the lien of appellant under the mortgage, (*Tomlinson*v. *Greenfield,*31 Ark., 558), and if appellee had proven the matters in evidence alleged in bis answer, the decree would have been right.

Under the Code practice no reply is allowed to an answer setting up matters of defense only. The statute .makes an issue to matters in avoidance alleged in the answer. *Gantt's Digest,*4561, 4569, 4608.

*740Appellee admitted, in effect, the execution and registration of the mortgage, and that he had received of Johnson, the mortgagor, three bales of the cotton covered by the mortgage, and appropriated them to his own use. To avoid the effect of these admissions, he alleged, in substance, that Mi's. Daniel had alien on the cotton for rent, and that the three bales of cotton received and appropriated by him were, in effect, delivered to her in payment of rent. The *onus*of proving these allegations — this new matter in avoidance, was upon him.

The cause having been heard on bill and answer, without deposition or oral proof, and the material allegations of the bill being admitted, and the affirmative allegations of the answer made by way of avoidance, being put at issue by the statute, and not proven by the appellee, appellant was entitled, to a decree against him.

The decree' must be reversed, and the cause remanded for a re-hearing, with leave to appellee to produce, if he can, proof of the affirmative allegations of his answer.