complete his execution by making a further seizure. 1 Burr. 589. It is to be observed also, that there is an essential difference between distresses at common law and distresses prescribed by statute. The former are taken nomine penae, (q. v.) as a means of compelling payment; the latter are similar to executions, and are taken as satisfaction for a duty. The former could not be sold the latter might be. Their only similarity is, that both are replevisable. A consequence of this difference is, that averia carucae are distrainable in the latter case, although there be other sufficient distress. 1 Burr. Rep. 588.
2.
The remedy by distress to enforce the payment of arrears of rent is so
frequently adopted by landlords, (Co. Lit. 162, b,) that a considerable
space will be allotted to this article under the following heads: 1. The
several kinds of rent for which a distress may be made. 2. The persons
who may make it. 3. The goods which may be distrained. 4. The time when a
distress may be made. 5. In what place it may be made. 6. The manner of
making it, and disposing of the goods distrained. 7. When a distress
will be a waiver of a forfeiture of the lease.
3.
- §1. Of the rents for which a distress may be made. 1. A distress may
generally be taken for any kind of rent in arrear, the detention of
which, beyond the day of payment, is an injury to him who is entitled to
receive it. 3 Bl. Com. 6. The rent must be reserved out of a corporeal
hereditament, and must be certain in its quantity, extent, and time of
payment, or at least be capable of being reduced to certainty. Co. Lit.
96, a.; 13 Serg. & Rawle, 64; 3 Penn. R. 30. An agreement that the
lessee pay no rent, provided he make repairs, and the value of the
repairs is uncertain, would not authorize the landlord to distrain.
Addis. 347. Where the rent is a certain quantity of grain, the landlord
may distrain for so many bushels in arrear, and name the value, in order
that if the goods should not be replevied, or the arrears tendered, the
officer may know what amount of money is to be raised by the sale, and
in such case the tenant may tender the arrears in grain. 13 Serg. &
Rawle, 52; See 3 Watts & S. 531. But where the tenant agreed,
instead of rent, to render " one-half part of all the grain of every
kind, and of all hemp, flax, potatoes, apples, fruit, and other produce
of whatever kind that should be planted, raised, sown or produced, on or
out of the demised premises, within and during the terms,", the
landlord cannot, perhaps, distrain at all; he cannot, certainly,
distrain for a sum of money, although he and the tenant may afterwards
have settled their accounts, and agreed that the half of the produce of
the land should be fixed in money, for which the tenant gave his note,
which was not paid. 1 3 Serg. & Rawle, 5 2. But in another case it
was held, that on a demise of a grist mill, when the lessee is to render
one-third of the toll, the lessor may distrain for rent. 2 Rawle, 11.
4.
- 2. With respect to the amount of the rent, for which a lessor may in
different cases be entitled to make a distress, it may be laid down as a
general rule, that whatever can properly be considered as a part of the
rent, may be distrained for, whatever be the particular mode in which
it is agreed to be paid. So that where a person entered into possession
of certain premises, subject to the approbation of the landlord, which
was afterwards obtained, by agreeing to pay in advance, rent from the
time be came into possession, it was, in England, determined that the
landlord might distrain for the whole sum accrued before and after the
agreement. Cowp. 784. For on whatever day the tenant agrees that the
rent shall be due, the law gives the landlord the power of distraining
for it at that time. 2 T. R. 600. But see 13 S. & R. 60. In New
York, it was determined, that an agreement that the rent should be paid
in advance, is a personal covenant on which an action lies, but not
distress. 1 Johns. R. 384. The supreme court of Pennsylvania declined
deciding this point, as it was not necessarily before them. 13 Serg.
& Rawle, 60. Interest due on rent cannot, in general, be distrained
for; 2 Binn. 146; but may be recovered from the tenant by action, unless
under particular circumstances. 6 Binn. 159.
5.
- §2. Of the persons entitled to make a distress. 1. When the landlord
is sole owner of the property out of which rent is payable to him, he
may, of course, distrain in his own right.
6.
- 2. Joint tenants have each of them an estate in every part of the
rent; each may, therefore, distrain alone for the whole, 3 Salk. 207,
although he must afterwards account with his companions for their
respective shares of the rent. 3 Salk. 17; 4 Bing. 562; 2 Brod. & B.
465; 5 Moore, 297 Y. B. 15 H. VIII, 17, a; 1 Chit. Pr. 270; 1 Tho. Co.
Litt. 783, note R; Bac. Ab. Account; 5 Taunt. 431; 2 Chit. R. 10; 3
Chit. Pl. 1297. But one joint tenant cannot avow solely, because the
avowry is always upon the right, and the right of the rent is in all of
them. Per Holt, 3 Salk. 207. They may all join in making the distress,
which is the better way.
7.
- 3. Tenants in common do not, like joint tenants, hold by one title
and by one right, but by different titles, and have several estates.
Therefore they should distrain separately, each for his share, Co. Lit.
s. 317, unless the rent be of an entire thing, as to render a horse, in
which case, the thing being incapable of division, they must join. Co.
Lit. 197, a. Each tenant in common is entitled to receive, from the
lessee, his proportion of the rent; and therefore, when a person holding
under two tenants in common, paid the whole rent to one of them, after
having received a notice to the contrary from the other, it was held,
that the party who gave the notice might afterwards distrain. 5 T. R.
246. As tenants in common have no original privity of estate between
them, as to their respective shares, one may lease his part of the land
to the other, rendering rent, for which a distress may be made, as if
the land had been demised to a stranger. Bro. Ab. tit. Distress, pl. 65.
8.
- 4. It may be, perhaps, laid down asa general rule, that for rent due
in right of the wife, the hushand may distrain alone; 2 Saund. 195; even
if it accrue to her in the character of executrix or administratrix.
Ld. Raym. 369. With respect to the remedies for the recovery of the
arrears of a rent accruing in right of his wife, a distinction is made
between rent due for land, in which the wife has a chattel interest, and
rent due in land, in which she has an estate of freehold and
inheritance. And in some cases, a further distinction must be made
between a rent accruing before and rent accruing after the coverture.
See, on this subject, Co. Lit. 46, b, 300, a; 351, a; 1 Roll. Abr. 350;
stat; 32 Hen. VIII. c. 37, s. 3.
9.
- 5. A tenant by the curtesy, has an estate of freehold in the lands of
his wife, and in contemplation of law, a reversion on all land of the
wife leased for years or lives, and may distrain at common law for all
rents reserved thereon.
10.
- 6. A woman may be endowed of rent as well as of land; if a hushand,
therefore, tenant in fee, make a lease for years, reserving rent, and
die, his widow shall be endowed of one-third part of the reversion by
metes and bounds, together with a third part of the rent. Co. Litt. 32,
a. The rent in this base is apportioned by the act of law, and therefore
if a widow be endowed of a third part of a rent in fee, she may
distrain for a third part thereof, and the heir shall distrain for the
other part of the rent. Bro. Abr. tit. Avowry, pl. 139.
11.
- 7. A tenant for his own life or that of another, has an estate of
freehold, and if he make a lease for years, reserving rent, he is
entitled to distrain upon the lessee. It may here be proper to remark,
that at common law, if a tenant for life made a lease for years, if be
should so long live, at a certain rent, payable quarterly, and died
before the quarter day, the tenant was discharged of that quarter's rent
by the act of God. 10 Rep. 128. But the 11 Geo. II. c. 19, s. 15, gives
an action to the executors or administrators of such tenant for life.
12.
- 8. By the statute 32 Henry VIII. c. 37, s. 1, "the personal
representatives of tenants in fee, tail, or for life, of rent-service,
rent-charge, and rents-seek, and fee farms, may distrain for, arrears
upon the land charged with the payment, so long as the lands continue in
seisin or possession of the tenant in demesne, who ought to have paid
the rent or fee farm, or some person claiming under him by purchase,
gift or descent." By the words of the statute, the distress must be made
on the lands while in the possession of the "tenant in demesne," or
some person claiming under him, by purchase, gift or descent; and
therefore it extends to the possession of those persons only who claim
under the tenant, and the statute does not comprise the tenant in dower
or by the curtesy, for they come in, not under the party, but by act of
law. 1 Leon. 302.
13.
- 9. The heir entitled to the reversion may distrain for rent in arrear
which becomes due after the ancestor's death; the rent does not become
due till the last minute of the natural day, and if the ancestor die
between sunset and midnight, the heir, and not the executor, shall have
the rent. 1 Saund. 287. And if rent be payable at either of two periods,
at the choice of the lessee, and the lessor die between them, the rent
being unpaid, it will go to the heir. 10 Rep. 128, b.
14.
- 10. Devisees, like heirs, may distrain in respect of their
reversionary estate; for by a devise of the reversion the rent will pass
with its incidents. 1 Ventr. 161.
15.
- 11. Trustees who have vested in them legal estates, as trustees of a
married woman, or assignees of an insolvent, may of course distrain in
respect of their legal estates, in the same manner as if they were
beneficially interested therein.
16.
- 12. Guardians may make leases of their wards' lands in their, own
names, which will be good during the minority of the ward. and,
consequently, in respect of such leases, they possess the same power of
distress as other persons granting leases in their own rights. Cro. Jac.
55, 98.
17.
- 13. Corporations aggregate should generally make and accept leases or
other conveyances of lands or rent, under their common seal. But if a
lease be made by an agent of the corporation, not under their common
seal, although it may be invalid as a lease, yet if the tenant hold
under it, and pay rent to the bailiff or agent of the corporation, that
is sufficient to constitute a tenancy at least from year to year, and to
entitle the corporation to distrain for rent. New Rep. 247. But see
Corporation.
18.
- §3. Of the things which may or may not be distrained. Goods found
upon the premises demised to a tenant are generally liable to be
distrained by a landlord for rent, whether such goods in fact belong to
the tenant or other persons. Coin. Dig. Distress, B 1. Thus it has been
held, that a gentleman's chariot, which stood in a coach-house belonging
to a common livery stable keeper, was distrainable by the landlord for
the rent due him by the livery stable keeper for the coach-house. 3
Burr. 1498. So if cattle are put on the tenant's land by consent of the
owners of the beasts, they are distrainable by the landlord immediately
after for rent in arrear. 3 Bl. Com. 8. But goods are sometimes
privileged from distress, either absolutely or conditionally.
19.
First. Those of the first class are privileged, 1. In respect of the
owner of 2. Because no one can have property in them. 3. Because they
cannot be restored to the owner in the same plight as when taken. 4.
Because they are fixed to the freehold. 5. Because it is against the
policy of law that they should be distrained. 6. Because they are in the
custody of the law. 7. Because they are protected by some special act
of the legislature.
20.
- 1. The goods of a person who has some interest, in the land jointly
with the distrainer, as those of a joint tenant, although found upon the
land, cannot be distrained. The goods of executors and administrators,
or of the assignee of an insolvent regularly discharged according to
law, cannot, in Pennsylvania, be distrained for more than one year's
rent. The goods of a former tenant, rightfully on the land, cannot be
distrained for another's rent. For example, a tenant at will, if
quitting upon notice from his landlord, is entitled to the emblements or
growing crops; and therefore even after they are reaped, if they remain
on the land for the purpose of hushandry, they cannot be distrained for
rent due by the second tenant. Willes, 131. And they are equally
protected in the hands of a vendee. Ibid. They cannot be distrained,
although the purchaser allow them to remain uncut an unreasonable time
after the are ripe. 2 B. & B. 862; 5 Moore, 97, S. C.
21.
- 2. As every thing which is distrained is presumed to be the property
of the tenant, it will follow that things wherein no man can have an
absolute and valuable property, as cats, dogs, rabbits, and all animals
ferae naturae, cannot be distrained. Yet, if deer, which are of a wild
nature, are kept in a private enclosure, for the purpose of sale or
profit, this so far changes their nature by reducing them to a kind of
stock or merchandise, that they may be distrained for rent. 3 B1. Com.
7.
22.
- 3. Such things as cannot be restored to the owner in the same plight
as when they were taken, as milk, fruit, and the like, cannot be
distrained. 3 Bl. Com. 9.
23.-
4. Things affixed or annexed to the freehold, as furnaces, windows,
doors, and the like, cannot be distrained, because they are not personal
chattels, but belong to the realty. Co. Litt. 47, b. And this rule
extends. to such things as are essentially a part of the freehold,
although for a time removed therefrom, as a millstone removed to be
picked; for this is matter of necessity, and it still remains in
contemplation of law, a part of the freehold. For the same reason an
anvil fixed in a smith's shop cannot be distrained. Bro. Abr. Distress,
pl. 23; 4 T. R. 567; Willis, Rep. 512 6 Price's R. 3; 2 Chitty's R. 167.
24.
- 5. Goods are privileged in cases where the proprietor is either
compelled, from necessity to place his goods upon the land, or where be
does so for commercial purposes. 17 S. & R. 139; 7 W. & S. 302; 8
W. & S. 302; 4 Halst. 110; 1 Bay, 102, 170; 2 McCord, 39; 3 B.
& B. 75; 6 J. B. Moore, 243; 1 Bing. 283; 8 J. B. Moore, 254; 2 C.
& P. 353; 1 Cr. M. 380. In the first case, the goods are exempt,
because the owner has no option; hence the goods of a traveller in an
inn are exempt from distress. 7 H. 7, M. 1, p. 1.; Hamm. N. 380, a.; 2
Keny. 439; Barnes, 472; 1 Bl. R. 483; 3 Burr. 1408. In the other, the
interests of the community require that commerce should be encouraged,
and adventurers will not engage in speculations, if the property
embarked is to be made liable for the payment of debts they never
contracted. Hence goods landed at a wharf, or deposited in a warehouse
on storage, cannot be distrained. 17 Serg. & Rawle, 138; 6 Whart. R.
9, 14; 9 Shepl. 47; 23 Wend. 462. Valuable things in the way of trade
are not liable to distress; as, a horse standing in a smith's shop to be
shod, or in a common inn; or cloth at a tailor's house to be made into a
coat; or corn sent to a mill to be ground, for these are privileged and
protected for the benefit of trade. 3 Bl. Com. 8. On the same principle
it has been decided, that the goods of a boarder are not liable to be
distrained for rent due by the keeper of a boarding house; 5 Whart. R.
9; unless used by the tenant with the boarder's consent, and without
that of the landlord: 1 Hill , 565.
25.
- 6. Goods taken in execution cannot be distrained. The law in some
states gives the landlord the right to claim payment out of the proceeds
of an execution for rent, not exceeding one year, and he is entitled to
payment up to the day of seizure, though it be in the middle of a
quarter 2 Yeates, 274; 5 Binn. 505; but he is not entitled to the day of
sale. 5 Binn. 505. See 18 Johns. R. 1. The usual practice is, to give
notice to the, sheriff that there is a certain sum due to the landlord
as arrears of rent; which notice ought to be given to the sheriff, or
person who takes the goods in execution upon the premises for the
sheriff is, not bound to find out whether rent is due, nor is he liable
to an action, unless there has been a demand of rent before the removal.
1 Str. 97, 214; 3 Taunt. 400 2 Wils. 140; Com. Dig. Rent, D 8; 11
Johns. R. 185. This notice can be given by the immediate landlord only a
ground landlord is not entitled to his rent out of the goods of the
under tenant taken in execution. 2 Str. 787. And where there are two
executions, the landlord is not entitled to a year's rent on each. See
Str. 1024. Goods distrained and replevied may be distrained by another
landlord for subsequent rent. 2 Dall. 68.
26.-7.
By some special acts of the legislature it is provided that tools of a
man's trade, some designated household furniture, school books, and the
like, shall be exempted from distress, execution, or sale. And by a
recent Act of Assembly of Pennsylvania, April 9, 1849, property to the
value of three hundred dollars, exclusive of all wearing apparel of the
defendant and his family, and all bibles and school books in use in the
family, are exempted from levy and sale on execution, or by distress for
rent.
27.
- Secondly. Besides the above mentioned goods and chattels, which are
absolutely privileged from distress, there are others which are
conditionally so, but which may be distrained under certain
circumstances. These are, 1. Beasts of the plough, which are exempt if
there be a sufficient distress besides on the land whence the rent
issues. Co. Litt. 47, a; Bac. Abr. Distress, B. 2. Implements of trade;
as, a loom in actual use; and there is a sufficient distress besides. 4
T. R. 565. 3. Other things in actual use,; as, a horse whereon a person
is riding, an axe in the hands of. a person cutting wood, and the like.
Co. Litt. 4 7, a.
28.
- §4. The time when a distress may be made. 1. The distress cannot be
made till the rent is due by the terms of the lease; as reat is not due
until the last minute of the natural day on which it is reserved, it
follows that a distress for rent cannot be made on that day. 1 Saund.
287; Co. Litt. 47, b. n. 6. A previous demand is not generally
necessary, although there be a clause in the lease, that the lessor may
distrain for rent," being lawfully demanded Bradb. 124; Bac. Abr. Rent,
1; the making of the distress being a demand though it is advisable to
make such a demand. But where a lease provides for a special demand; as,
if the clause were that if the rent should happen to be behind it
should be demanded at a particular place not on the land; or be demanded
of the person of the tenant; then such special demand is necessary to
support the distress. Plowd. 69 Bac. Abr. Rent, I.
29. - 2 A distress for rent can only be made during the day time. Co. Litt. 142, a.
30.
- 3. At common law a distress could not be made after the expiration of
the lease to remedy this evil the legislature of Pennsylvania passed an
act making it "lawful for any person having any rent in arrear or due
upon any lease for life or years or at will, ended or determined, to
distrain for such arrears after the determination of the said respective
leases, in the same manner as they might have done, if such lease had
not been ended: provided, that such distress be made during the
continuance of such lessor's title or interest.", Act of March 21, 1772,
s. 14, 1 Smith's Laws of Penna. 375. 4. In the city and county of
Philadelphia, the landlord may, under certain circumstances, apportion
his rent, and distrain before it becomes due. See act of March 25, 1825,
s. 1, Pamph. L. 114.
31.
- §5. In what place a distress may be made. The distress may be made
upon the land, or off the land. 1. Upon the land. A distress generally
follows the rent, and is consequently confined to the land out of which
it issues. If two pieces of land, therefore, are let by two separate
demises, although both be contained in one lease, a joint distress
cannot be made for them, for this would be to make the rent of one issue
out of the other. Rep. Temp. Hardw. 245; S. C. Str. 1040. But where
lands lying in different counties are let together by one demise, at one
entire rent, and it does not appear that the lands are separate from
each other, one distress may be made for the whole rent. Ld. Raym. 55;
S. C. 12 Mod. 76. And, where rent is charged upon land, which is
afterwards held by several tenants, the grantee or landlord may distrain
for the whole upon the land of any of them; because the whole rent is
deemed to issue out of every part of the land. Roll. Abr. 671. If there
be a house on the land, the distress may be made in the house; if the
outer door or window be open, a distress may be taken out of it. Roll.
Abr. 671. And if an outer door be open, an inner door may be broken open
for the purpose of taking a distress. Comb. 47; Cas. Temp. Hard. 168.
Barges on a river, attached to the leased premises (a wharf) by ropes,
cannot be distrained. 6 Bingh. 150; 19 Eng. Com. Law R. 36.
32.
- 2. Off the land. By the 5th and 6th sections of the Pennsylvania act
of assembly of March 21, 1772, copied from the 11 Geo. II. c. 19, it is
enacted, that if any tenant for life, years, at will, or otherwise,
shall fraudulently or clandestinely convey his goods off the premises to
prevent the landlord from distraining the same, such person, or any
person by him lawfully authorized, may, within thirty days after such
conveyance, seize the same, wherever they shall be found, and dispose of
them in such manner as if they had been distrained on the premises.
Provided, that the landlord shall not distrain any goods which shall
have been previously sold, bona fide, and for a valuable consideration,
to one not privy to the fraud. To bring a case within the act, the
removal must take place after the rent becomes due, and must be secret,
not made in open day, for such removal cannot be said to be clandestine
within the meaning of the act. 3 Esp. N. P. C. 15; 12 Serg. & Rawle,
217; 7 Bing. 422; 1 Moody & Malkin, 585. It has however been made a
question, whether goods are protected that were fraudulently removed on
the night before the rent had become due. 4 Camp. 135. The goods of a
stranger cannot be pursued; they can be distrained only while they are,
on the premises. 1 Dall. 440.
33.
- §6. Of the manner of making a distress. 1. A distress for rent may be
made either by the person to whom it is due, or, which is the
preferable mode, by a constable, or bailiff, or other officer properly
authorized by him.
34.
- 2. If the distress be made by a constable, it is necessary that he
should be properly authorized to make it; for which purpose the landlord
should give him a written authority, or; as it is usually called, a
warrant of distress; but a subsequent assent and recognition given by
the party for whose use the distress has been made, is sufficient. Hamm.
N. P. 382.
35.
- 3. When the constable is thus provided with the requisite authority
to make a distress, he, may distrain by seizing the tenant's goods, or
some of them in the name of the whole, and declaring that he takes them
as a distress for the sum expressed in the warrant to be due by the
tenant to the landlord, and that he takes them by virtue of the said
warrant; which warrant he ought, if required, to show. 1 Leon. 50.
36.
- 4. When making the distress it ought to be made for the whole rent;
but if goods cannot be found at the time, sufficient to satisfy the
rent, or the party mistake the value of the thing distrained, he may
make a second distress. Bradb. 129, 30; 2 Tr. & H. Pr. 155; supra 1.
37.
- 5. As soon as a distress is made, an inventory of the goods
distrained should be made, and a copy of it delivered to the tenant,
together with a notice of taking such distress, with the cause for
taking the same. This notice of taking a distress is not required by the
statute to be in writing; and, therefore, parol or verbal notice may be
given either to the tenant on the premises, or to the owner of the
goods distrained. 12 Mod. 76. And although notice is directed by the act
to specify the cause of taking, it is not material whether it
accurately state the period of the rent's becoming due; Dougl. 279; or
even whether the true cause of taking the goods be expressed therein. 7
T. R. 654. If the notice be not personally given, it should be left in
writing at the tenant's house, or according to the directions of the
act, at the mansion-house or other most notorious place on the premises
charged with the rent distrained for.
38.
- 6. The distrainor may leave or impound the distress on the premises
for the five days mentioned in the act, but becomes a trespasser after
that time. 2 Dall. 69. As in many cases it is desirable for the sake of
the tenant that the goods should not be sold as soon as the law permits,
it is usual for him to sign an agreement or consent to their remaining
on the premises for a longer time, in the custody of the distrainor, or
of a person by him appointed for that purpose. While in his possession,
the distrainor cannot use or work cattle distrained, unless it be for
the owner's benefit, as to milk a cow, or the like. 5 Dane's Abr. 34.
39.
- 7. Before the goods are sold they must be appraised by two reputable
free-holders, who shall take an oath or affirmation to be administered
by the sheriff, under-sheriff, or coroner, in the words mentioned in the
act.
40.
- 8. The next requisite is to give six days public notice of the time
and place of sale of the things distrained; after which, if they have
not been replevied, they may be sold by the proper officer, who may
apply the proceeds to the payment and satisfaction of the rent, and the
expenses of the distress, appraisement and sale. The over-plus, if any,
is to be paid to the tenant.
41.
- §7. When a distress will be a waiver of a forfeiture of the lease. On
this subject, see 1 B. & Adol. 428. The right of distress, it
seems, does not exist in the New England states. 4 Dane's Ab. 126; 7
Pick. R. 105; 3 Griff. Reg 404; 4 Griff. Reg. 1143; Aik. Dig. 357, nor
in Alabama, Mississippi, North Carolina, nor Ohio; and in Kentucky, the
right is limited to a distress for a pecuniary rent. 1 Hill. Ab. 156.
Vide, generally, Bouv. Inst. Index, h . t.; Gilb. on Distr. by Hunt;
Bradb. on Distr.; Com. Dig. h. t.; Bac. Ab. h. t.; Vin. Ab. h. t.; 2
Saund. Index, h. t.; Wilk. on Repl.; 3 Chit. Bl. Com. 6, note; Crabb on
R. P. §222 to 250.
DISTRESS INFINITE,
English practice. A process commanding the sheriff to distrain a person
from time to time, and continually afterwards, by taking his goods by
way of pledge, to enforce the performance of something due from the
party distrained upon. In this case, no distress can be immoderate,
because, whatever its value may be, it cannot be sold, but is to be
immediately restored on satisfaction being made. 3 Bl. Com. 231. See
Distringas.
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