135 Va. 204 | Va. | 1923
after making the foregoing statement, delivered the following opinion of the court.
As stated in the petition for the writ of error in this case, there is but a single question presented by the assignments of error, and that question is as follows:
The question must be answered in the affirmative.
The personal liability in question is imposed by the statute which, as it stood when the cause of action in the instant case arose, is contained in section 5524 of the Code, which is as follows:
“Section 5524. When goods not to be removed without paying a year’s rent; lien for taxes, levies and militia fines not affected.—If, after the commencement of any tenancy, a lien be obtained or created by deed of trust, mortgage, or otherwise, upon the interest or property in goods or premises leased or rented, of any person liable for the rent, or the said goods be sold, the party having such lien, or the purchaser of such goods, may remove them from the premises on the following terms, and not otherwise, that is to say; on the terms of paying to the person entitled to the rent so much as is in arrear, and securing to him so much as is to become due, what is so paid or secured not being more altogether than a*214 year’s rent in any ease. If the goods be taken under legal process, the officer executing it shall, out of the proceeds of the goods, make such payment of what is in arrear; and as to'what is to become due, he shall sell a sufficient portion of the goods on a credit till then, taking from the purchasers bonds, with good security, payable to the person so entitled, and delivering such bonds to him. If the goods be not taken under legal process, such payment and security shall be made and given before their removal. Neither this nor the preceding section shall affect any lien for taxes, levies, or militia fines. (Code 1887, section 2792).”
This statute as first enacted in Virginia appears in 1 Revised Code 1919, section 7, page 448; by its terms it was applicable to persons taking any goods or chattels lying or being on leased premises “by virtue of any writ of execution (or) on any pretence whatsoever” (the word “or” being evidently a printer’s error and no part of the statute), and provided that such goods or chattels should not be so taken “unless the party so taking the same, shall, before removal of the goods from off such premises, pay or tender to the landlord or lessor thereof or his agent, all the money or tobacco due, for the rent of the said premises, at the time of taking such goods or chattels in execution.” On the margin we find this note of the revisors of such Code: “Goods upon leasehold lands not to be taken in execution until rent in arrear be paid. 8 Anne, chap. 14, sec. 1.”
The statute of 8 Anne, chapter 14, section 1, so far as material, was as follows:
“For the more easy and effectual recovery of rents reserved on leases * * ; * * * no goods or chattels whatsoever lying or being in or upon any ‘leased premises’ shall be liable to be taken by virtue of any*215 •execution, on any pretence whatsoever, unless' the party at whose suit the said execution is sued out shall before the removal of such goods from off the said premises, by virtue of such execution or extent, pay to the landlord of the said premises or his bailiff, all such sum or sums of money as are or shall be due for rent for the said premises at the time of the taking such goods or chattels by virtue of such execution; provided the said arrears of rent do not amount to more than one year’s rent; and in •case the said arrears shall exceed one year’s rent, then the said party, at whose suit such execution is sued out, paying the said landlord or his bailiff one year’s rent, may proceed to execute his judgment as he might have •done before the making of this act; and the sheriff or •other officer is hereby empowered and required to levy and pay to the plaintiff as well the money so paid for xent as the execution money.”
Hence the numerous decisions in the jurisdictions
Nor is Bishop on Non-Contract Law, section 132, and the authorities there cited, other than 2 Institutes, or Hayes v. Michigan Cent. R. Co., 111 U. S. 228, 4 Sup. Ct. 369, 28 L. Ed. 410, or C. & O. R. Co. v. Bank, 92 Ya. 495, 504, 23 S. E. 935, 44 L. R. A. 457, and note, precisely in point, although the principle involved therein is a kindred one to that involved in the case before us. These authorities and the instant case are alike in this: The statutes dealt with therein must be looked to, and their provisions must be interpreted in the light of their object—of the mischief sought to be remedied and the relief intended to be afforded—in order to determine whether they impose any duty to individuals for the violation of which the statute means to give to the individual a cause of action against the one violating the duty: But, speaking broadly, the statutes dealt with by the authorities just mentioned, other than those referred to in Lord Coke’s Institutes, where they are held to impose such a duty and to confer such a cause of action, impose a duty less specific in its nature than does
We come now to the consideration of the construction of the statute involved in the case before us.
- Under the English decisions, in such case, the notice need not be of the exact amount of the rent in arrear. -Notice that any of the rent mentioned in the statute was in arrear put the person removing the property upon inquiry and was equivalent to notice of the exact amount, if his failure to make inquiry of the landlord as the only reason he did not know of the.amount.
Where the proceeding was against an officer the practice was for the landlord, in lieu of an action in case, to proceed against the officer by motion, upon which a rule was issued against the officer to show cause against such judgment as aforesaid being entered against him for the money in .his hands derived from the sale under the execution which should have been paid to the landlord, if the money was still in the officer’s hands, and if wrongfully paid out, then against him personally; there being in such proceeding by motion the same liability upon the officer as if there had been an action in case against him.
Palgrave v. Windham, 1 Strange, 212; Smith v. Russell, 3 Taunt. 400; Hoskins v. Knight, 1 M. & S. 245; Henchett v. Kimpson, 2 Wils. 140; to cite only a few of the decisions on the subject. See also 7 Com. Dig., pp. 261-3.
The said statute of 8 Anne, or substantially the same statute, was enacted also in New York, Pennsylvania and Kentucky, and such statutes have been given the same construction by the decisions of those States as the statute of 8 Anne by the English decisions. See People v. Schenk, 2 Johns. (N. Y.) 479; Alexander v. Mahon, 11 Johns. (N. Y.) 185; West's Adm'r v. Sink, 2 Yeates (Pa.) 274; Burket v. Boude, 3 Dana (Ky.) 209, 210-11.
In the last cited case the Kentucky court says that the statute involved was a transcript of the statute of 8 Anne and “that the interpretation which has been given to the latter statute by the English courts has
“In the former action he waives the tort in the taking of the property, affirms the sale, and asks an application of the fund raised, * * * .1 Strange 97, 643; 2 Strange 1024; 7 Com. Dig. 262-3, title rent, letter D. 8; Bradley on Distress, 215, 119.
“But when the action on the case is brought, it is brought for the wrongful act of the officer, in taking and removing the property, * * * . Besides, the statute expressly prohibits the removal of the property before the year’s rent is paid. In case it is removed, what is the criterion of damages? Surely the value of the thing removed, provided that value does not exceed the year’s rent. To that amount he is injured, * * * and to that amount he has a right to recover in this action * * .”
It follows from what we have said above that there was no error committed by the trial court of which the defendant lienholder complains in the assignments of error.
Under section 5524 aforesaid, as under the statute of 8 Anne, the liability of the person removing the property is not dependent upon notice to him of the exact amount which is unpaid of rent mentioned in the statute. Notice of any rent'so mentioned being in arrear or to become due, puts the person removing the property upon inquiry and is equivalent to notice of the exact amount of such rent, if by inquiry of the landlord he would have ascertained the amount.
But it appears from the statement of facts preceding this opinion that the excess value of the property was established by the evidence without conflict; that the aforesaid notice was had, was not the subject of any controversy before the jury and could not have been otherwise than inferred by the jury from the circumstances disclosed in evidence; and the reference to what property was left on the premises may be treated as surplusage. Hence, there was in truth no error in the instruction of which the defendant could justly complain.
The instructions asked for by the defendant were properly refused and the motion to set aside the verdict was properly denied in view of the conclusions which we have reached above.
The case will be affirmed.
Affirmed.