abandons it before that time, loses his lien.2

22

And the lien is also

lost by failure to bring suit for its enforcement within the time limited by statute for that purpose. But a party does not waive his right to a statutory lien by taking other security for the debt, unless the security taken or credit extended is such as to evidence an intent to waive the lien and rely exclusively on the security given.23 Nor does he waive his lien by suing on the lien debt and obtaining personal judgment.24 A laborer's lien, being a vested right, may not be impaired by an act passed after the work was begun.25

DIVISION II. PERSONS ENTITLED TO LIENS.

Laborers.

§ 837. The principal class of persons entitled to agricultural liens consists of farm laborers. All persons who work upon a crop in any of its stages are entitled to the privilege upon the crop and the movables of the plantation given by the Louisiana Code, even though they work only part of the year.26 A person employed to do general work on a plantation, who assists in making, gathering, and ginning the cotton grown thereon, is entitled to a lien on the cotton, under a statute providing that every employé, etc., who may aid by his labor to make, gather, or prepare for sale any crop, shall have a lien on the interest of the person who contracts with him for his wages, paramount to all other liens except the landlord's lien for rent and supplies.27 And under a statute providing that every employé, etc., "or other person" who may "aid by his labor" to make, gather, or "prepare" for market any crop, shall have a lien thereon for his wages, share, or interest in such crop, paramount to all

laborer has, prior to the assignment, waived his lien, the assignee cannot disclaim the waiver on the ground that he did not know of it. He was bound to ascertain what right the laborer could confer. Id.

21 Thigpen v. Leigh, 93 N. C. 47.

22 Hume v. Simmons, 16 South. 552, 34 Fla. 584.

23 Joslyn v. Smith, 49 N. W. 382, 2 N. D. 53.

24 Wilson v. Taylor, 8 South. 149, 89 Ala. 368.

25 McCoy v. Wood, 70 N. C. 125; Warren v. Woodard, Id. 382.

26 Saloy v. Dragon, 37 La. Ann. 71.

27 Lumbley v. Thomas, 5 South. 823, 65 Miss. 97.'

incumbrances, except that of the landlord for rent and supplies, a ginner who gins for market has a lien on a part of the "cotton ginned," for his entire labor, as against a mortgagee, to whom the balance of the cotton has been turned over.28 A statute declaring that "all laborers who shall perform work and labor for any person under contract shall have an absolute lien on the production of their labor for such work or labor" applies only to laborers as distinguished from artisans. 29 Thus one not a plantation laborer, who has repaired a sugar house and machinery on a plantation, has no lien therefor on the crops raised on such plantation.30 The fact that a person in service on one place, for a few days, supervises laborers sent therefrom to another place, does not entitle him to the character of a laborer on the latter place, and, as such, to a lien on the crops thereon.31 A laborer under a "cropper" has a lien on the crop only to the extent of the latter's claim against the landowner.3

32

"Croppers."

§ 838. One who raises a crop upon the land of another under a contract to raise it for a share of the crop is called, in the South, a "cropper." He has a lien upon the crop for whatever is due him under his contract.33 His lien is superior to any other lien created by the owner of the land after cultivation of the crop has been begun.34 His share of the crops is considered as being in the nature of wages for his work, entitling him to the same lien as a laborer who works for a daily wage.35 But an agreement by which a man was to work upon another's farm, the latter to furnish the mules and implements necessary therefor, the profits, after paying expenses, to be divided equally, does not create between the parties the relation of debtor and creditor, such that the former is entitled

28 Irwin v. Miller, 16 South. 678, 72 Miss. 174.

29 Dano v. Railroad Co., 27 Ark. 566.

30 Saloy v. Dragon, 37 La. Ann. 71.

31 Terry v. Groves, 14 South. 451, 71 Miss. 539.

32 Burgie v. Davis, 34 Ark. 179.

33 Burgie v. Davis, 34 Ark. 179; McElmurray v. Turner, 12 S. E. 359, 86Ga. 215; Rouse v. Wooten, 10 S. E. 190, 104 N. C. 229.

34 Rouse v. Wooten, 10 S. E. 190, 104 N. C. 229.

35 McElmurray v. Turner, 12 S. E. 359, 86 Ga. 215.

to a lien upon the crops for the work so performed, but abandoned before completion, for the failure of the owner of the farm to perform his part of the agreement.38

Other Persons.

38

§ 839. Overseers have no liens under statutes creating liens in favor of agricultural laborers, since they are not laborers.37 The Mississippi statutes of 1872 and 1873-giving and regulating liens on crops, and providing the means of enforcing the same-were intended to embrace only the classes enumerated therein, the employer and employés, the landlord and tenant, the cropper on shares, and the supply man and the party supplied; and do not embrace the overseer, nor give him a lien for his wages. But a later act, giving every employé, laborer, cropper, part owner, or other person who may aid by his labor to make, gather, or prepare for sale any crop, a lien for his wages or interest on the interest of the person who contracts with him, applies in favor of the overseer of a farm where the crop has been grown. And in Alabama overseers also have liens.40 A firm engaged to thresh grain for an agreed price are not "laborers" or "employés," and their compensation is not "wages," within the meaning of "An act to protect employés and laborers in their claims for wages." A statute declaring that any person who shall do labor in sowing or harvesting, or in securing any crop, shall have a lien therefor upon all such crop, does not give one a lien on grain for the labor of other persons than himself, employed by him in threshing it, though he was present, directing their work; but he may have a lien for his own labor, including the use of his threshing machine and teams.42 But no lien can be claimed for the labor of a team in raising crops, when such labor is not included

39

99 41

36 Grissom v. Pickett, 3 S. E. 921, 98 N. C. 54. This decision is not alluded to in the subsequent case of Rouse v. Wooten, supra.

37 Flournoy v. Shelton, 43 Ark. 168; Whitaker v. Smith, 81 N. C. 340; Isbell v. Dunlap, 17 S. C. 581.

38 Hester v. Allen, 52 Miss. 162.

39 Weise v. Rutland, 15 South. 38, 71 Miss. 933.

40 Townsend v. Brooks, 76 Ala. 308.

41 Johnston v. Barrills (Or.) 41 Pac. 656.

42 Mohr v. Clark, 19 Pac. 28, 3 Wash. T. 440.

in a contract for the labor of a person. 43 The lien accorded to an agricultural laborer is assignable, and his assignee may assert the claim and enforce the lien in the same manner and to the same extent as the laborer.**

DIVISION III.

ENFORCEMENT OF AGRICULTURAL LIENS.

Claim of Lien.

840. The mode of enforcing agricultural liens is regulated by statute. Sometimes the statute requires a lien claim to be filed. Thus the section of the North Carolina Code relating to the filing of laborers' liens with a justice of the peace, provides that "all claims shall be filed in detail, specifying the materials furnished or labor performed, and the time thereof." In a recent case in that state it appeared that the plaintiff had filed a laborer's lien claim, specifying as follows:

W. C. to J. C. Dr.
1886.

Dec. 8. For labor on farm for 8 months and 4 days, $10

per month.

Cr. by cash....

$81 46

5 00 $76 46

-The court held that this claim was insufficient, in that it did not show where the labor was performed, nor on what farm, nor that the claimant labored on the crop of his employer on which he intended to obtain a lien.45 The Washington Code authorizes several farm laborers to join in one lien claim for their services, and under that provision a lien claim for services rendered by several farm

43 Essency v. Essency, 38 Pac. 1130, 10 Wash. 375.

44 Kerr v. Moore, 54 Miss. 286; Buck v. Payne, 52 Miss. 271. Where a lien has been acquired by a person performing work in or about a threshing machine while engaged in threshing, the same passes by the assignment of the debt under which it was acquired. Duncan v. Hawn, 37 Pac. 626, 104 Cal. 10. But in Louisiana the payment of the planter's drafts in favor of his laborers and workmen does not subrogate the party so paying to the privileges of the laborers and workmen. Shaw v. Grant, 13 La. Ann. 52.

45 Cook v. Cobb, 7 S. E. 700, 101 N. C. 68.

laborers is good, though not signed by all the claimants, provided the body of the instrument shows who the claimants are.**

Foreclosure--Pleading.

§ 841. In the Southern states the first pleading in actions to enforce agricultural liens is an affidavit of the plaintiff's cause of action, on which affidavit a warrant of attachment issues. A failure of such affidavit to state that plaintiff's labor was performed under a contract does not vitiate the proceedings if objection on that ground is made for the first time on appeal. An affidavit to foreclose a lien for labor done upon a crop must state that the work was done by the plaintiff claiming the lien, and a mere statement that the defendant is indebted to the plaintiff for work done is not sufficient.48 The affidavit should state all the facts essential to the existence of the lien. Thus it must state that the plaintiff's contract has been completed.1 An affidavit which alleges that plaintiff entered defendant's service to work on his farm for 12 months, and that he fully completed and worked out that time, sufficiently shows that the plaintiff completed his contract.50 Where the statute de

clares that before foreclosure of a crop lien there must be demand on the owner for payment and a refusal to pay, and that this must be alleged in the affidavit of foreclosure, an affidavit which merely states that payment has been demanded and refused, without specifying on whom or by whom such demand was made, is fatally defective. Under a statute creating crop liens, and providing for their enforcement by attachment, if the employer attempts to remove the crop "without the permission or with intent to defraud the laborer of his lien," an affidavit that the defendant has removed and is removing and disposing of his cotton crop without regard to the

46 Pain v. Isaacs, 38 Pac. 1038, 10 Wash. 173.

47 Johnston v. Hannah, 66 Ala. 127.

48 Mabry v. Judkins, 66 Ga. 732.

49 Walls v. Rutherford, 60 Ga. 439.

50 Lindsay v. Lowe, 64 Ga. 438.

51 Anderson v. Beard, 54 Ga. 138. But the employer's continued absence from the county may be a sufficient excuse for not demanding payment.

v. Lowe, 64 Ga. 438.

MECH. LIENS-55

Lindsay

(865)