Keller v. Weber

Bowie, O. J.,

delivered the opinion of this Court.

The appellees sued the appellant in replevin, for taking and detaining various goods and chattels. The defendant made cognizance, as bailiif of one Young, in whose behalf he distrained the goods mentioned, for rent in arrear, due and owing by one Rinehart, as tenant of a dwelling house, by virtue of a certain demise, etc. Secondly, upon a demise to Rinehart, since deceased, but during the term, the said dwelling being in the occupation of the wife of the deceased. To the first cognizance, the appellee pleaded, “non tenuit,” and no rent in arrear, and thirdly, that at the time of the taking, Rinehart was dead, and no administration had been granted. The appellant joined issue on the first and second pleas of the appellees and demurred to their third. The issues in fact do not appear to have been tried, the Court below having overruled the demurrer to the third plea, judgment was entered thereon for the defendants, from which this appeal is taken. The question raised by .the demurrer is,-whether a landlord *665 may distrain during the term for rent due, after the death of the tenant, hut before administration granted. The remedy by distress, is not an action prosecuted by one party against another, to which of necessity there must he a plaintiff and a defendant, but a proceeding in rem, given by the common law to the landlord, whereby he seizes and holds the property found on the premises, as a pledge, until the tenant redeems the property by payment of the rent. 3 Black. Com., 7 ; Smith’s Landlord and Tenant, 220. By the Act of 2d Will, and Mary, ch. 5, sec. 2, it was enacted, where goods were distrained for rent due, and the tenant or owner of them did not within five days next after the distress and notice thereof left at the chief mansion house, or other most notorious place upon the premises, charged with rent, replevy the same, the person distraining, having first appraised, might sell the same toward satisfaction of the rent, etc. This statute was a remedial one, as much for the benefit of the landlord, as the tenant, giving a cumulative remedy, not abridging any that before existed. It does not require personal notice, but notice to be left at the mansion, or other chief place of abode. If the tenant be dead, those who occupy under the lease, come in subject to all the antecedent rights of the landlord. A distress may be made upon the land, so long as it is in possession of him that ought to pay, or any claiming by, from or under him. 4 Coke Rep., 50; Comyn’s Dig., 3 vol., 477. The case of Longwell and Ege vs. Ridinger, 1 Gill, 57 , shows that the right of distress by the landlord, after the death of the tenant, his administratix continuing in possession, was recognized by this Court. The demurrer admits the demise was continuing and unexpired, and that Emma Rinehart, wife of the tenant, who had resided on the premises with her late husband, continued to occupy them. She was in, either rightfully or wrongfully ; if the former, she was tenant, if the latter, she was executrix de son tort. Vide 1 H. Black., *666 467, where a general avowry was held good under 11 Geo. II., ch. 19.

(Decided 18th October, 1867.)

The plea, that there were no letters of administration, does not necessarily imply a want of notice. The notice is a preliminary to the sale, not to the distress, on the regularity of which, the right of possession of the goods depends. If they were legally distrained, a subsequent irregularity might subject the landlord to an action, but does not deprive him of his lien on the property distrained. 11 Geo. II., ch. 19, sec. 19 ; Smith’s Landlord and Tenant, 180, 181, in mar. The English authorities are clear that a want of notice does not render the distress invalid. Trent vs. Hunt, 9 Exch. 14 ; Tancred vs. Leyland, 16 Adolph. & Ellis, N. S., 669 ; (71 Eng. Com. Law, R., 669.) Independently of authority, we should reach the same conclusion upon principle. It follows from these premises, there was error in the judgment below and the same is reversed.

Judgment reversed and procedendo awarded.