White v. Hoeninghaus

Robinson, J.,

delivered-the opinion of the Court.

The question in this case turns upon the construction of sec. 18 of Art. 53 of the Code, which provides that “ whenever property shall be removed from the premises within sixty days prior or subsequent to the time when the rent has or will become due, and whether such removal be by night or day, it shall be lawful for the *129 landlord to follow, seize, and sell such property under distress, for the rent due, at any time within sixty days after the time, when the rent becomes due; provided, that such property shall not have been sold to a bona fide purchaser without notice, or taken in execution.”

This section is a codification of the Act of 1826, chap. 266, which provided that all removals of personal property owned by any tenant, and removed by said tenant, or by his or her order and direction, from the premises occupied by said tenant, and for the occupation of which rent shall be due, or about to become due, if the said property be removed as aforesaid within thirty days before the time said rent will become due, the said removal, whether by day or night, shall be considered a clandestine removal, and the property so removed shall be liable to be followed and distrained, &c. By the Act of 1842, the landlord's right to follow and distrain upon the property removed was extended to sixty days.

At common law the landlord could not distrain upon goods or chattels, unless they were found upon the rented premises, and the object of our statute, like the Statute of 11 George II, ch. 19, was to enable the landlord to follorv and distrain upon the goods of the tenant after they had been removed. But the removal of the goods contemplated by the Act is a removal by the tenant, or by some one in privity with him. This the Act of 1826 declares in explicit terms: “ All removals of personal property owned by any tenant, and removed by said tenant, or by his or her order and direction.” Such removals, whether by day or night, were declared to be clandestine removals, and the landlord had the right to follow and distrain upon the goods thus removed at any time within sixty days. But in this case the goods and" chattels of the tenant were taken by the sheriff under an attachment on original process, and were removed by him from the premises before any rent was due to the landlord. They *130 were not, therefore, removed -by the tenant or by his order and direction, within the meaning of the Code. Being taken under an attachment, they were in the custody of the law, and were not, therefore, liable to distraint. If any rent had been due at the time the tenant's goods were taken by the sheriff under the attachment, then the landlord under the decision in Thomson vs. The Baltimore and Susquehanna Steam Co., 33 Md., 319 , would have been entitled to the payment of such rent, just as if the tenant’s goods had been taken on execution under the Statute of 8 Anne, ch. 14.

(Decided 25th March, 1891.)

As no rent, however, was due, the landlord had no lien, legal or equitable, upon the property of the tenant; and, this being so, he had no lien or claim upon the proceeds arising from the sale of the tenant’s goods under the attachment. And the goods having been removed from the rented premises by the sheriff under an attachment, and not by the tenant, the landlord has no right under sec. 18. of Art. 53 of the Code, to follow and dis-train upon such goods.

Order affirmed.