Beekman v. Lansing

3 Wend. 446 | N.Y. Sup. Ct. | 1830

By the Court,

Marcy, J.

By the act concerning distresses, rents, &c. it is enacted that no goods or chattels upon any demised premises shall be liable to be taken by virtue of an execution, unless the party at whose suit the execution is issued shall, before the removal of such goods, pay the rent due, not exceeding a year’s rent. This section of our statute is a transcript of 8 Ann, ch. 14, § 1. under which it was formerly holden in England, that to entitle a landlord to his motion against the sheriff, he must have made a demand, and given notice to the sheriff of the rent due before the goods were removed, (1 Strange, 97, 214 ;) and some cases in our court seem to sanction this construction of the statute. The cases in Strange have however been overruled. The doctrine of them was first questioned in Smith v. Russell, (3 Taunton, 400,) and subsequently in Arnett v. Garnett, (3 Barn & Ald. 440.) It was held that notice to the sheriff, even after the removal of the goods, provided it was given before the sheriff had actually paid over the money, was sufficient to found a motion to the court. Notice to the sheriff of the rent due previous to the removal of the goods is not necessary. The statute, in terms, does not require it; and to give a construction to it requiring such notice previous to a removal would, in most cases, defeat the very object and intent of the statute. Notice, even after a sale, provided it be before the money is paid over to the plaintiff in the execution, is good. That such notice was given in the present case is conceded.

The landlord, however, where the goods of his tenant are ^ajcen jn execution, can claim of the sheriff only the rent due at the time of the taking of the goods ; he cannot demand rent which accrues after the levy of the execution, and while . J. the goods remain on the premises in the possession ot the sheriff. (Trappan v. Morie, 18 Johns. R. 1.) The execution in this case was issued in November, 1828, and the sheriff, according to his affidavit, made an actual and bona fide levy on the goods upon the demised premises in the succeeding month, at which time no rent was due. The goods were not removed from the premises until the 14th November, 1829, at which time upwards of #400 rent had accrued. It becomes important then to determine what constitutes in law a levy under an execution, and whether such a levy was made in the present instance.

What shall constitute a levy is not very distinctly defined in the reports of cases in this court. Iu England, the officer enters upon the premises in which the defendant’s goods are, and leaves one of his assistants in possession of them, or he causes an inventory to be taken and removes them. (1 Archb. Pr. 293. 1 Maule & Selw. 711. 5 Taunton, 198.). We are not disposed to go this length, but are of opinion that the officer should enter upon the premises where the goods of the defendant are, and take actual possession of them, (if they are such'of which possession can betaken.) The goods should be brought within his view, and subjected to his control, (Haggerty v. Wilder, 16 Johns. R. 288;) and it is proper also, if not necessary, that an inventory should be taken of them; the officer should assert his title to the goods by virtue of the execution; and we are inclined to think that his acts, as to the asserting of his rights and the divesting of the possession of the defendant, should be of such a character as would subject him to an action as a trespasser but for the protection of the execution; they should be public, open and unequivocal, and nothing should be done' by him to cast concealment over the transaction. But it is not necessary that an assistant of the officer should be left in possession of the goods, or that the goods should be removed; they may be left in the custody of the defendant, at the risk. of the plaintiff or of the sheriff, or on obtaining, as is customary, a receiptor for their delivery on demand.

Tested by these rules, was there a levy in this case in the month of December, 18281 The sheriff says that he then made an actual and honafide levy, but he omits to state the acts he did constituting such levy. This he was called on to do in this case by the affidavit on which this motion is founded, with a copy of which he had been served ; in which it is stated, on the information of the defendant, (in the truth of which information the attorney of the landlords expresses his belief;) that the sheriff had not been at the house of the defendant, to the knowledge of the defendant, to make a levy, until the month of November, 1829, when, and not before, an inventory .of the goods was made. To this charge an answer should have been made, and the acts detailed which induced the sheriff to say that he had made an actual and bona fide levy, so that the court might have judged whether or not they amounted to such levy. Not having done so, the fair intendment is, that the allegations could not be denied ; and if so, the sheriff erred in supposing that merely going to the house of the defendant with an execution in his pocket, without even apprising the defendant that he had come to make a levy upon his goods, was an actual and bona fide levy, defeating the rights of the landlord.

A secret levy on goods left on the premises in the possession of the defendant in the execution, and no act done to give notoriety to it, or to bring it to the knowledge of the landlords of the premises, of whom the defendant is a tenant for nearly a year afterwards, cannot have the effect to debar the claim of the landlords for rent. It would be unjust it should be so, and particularly in the present case, where the demised premises were re-let to the defendant, and the whole of the rent claimed accrued subsequent to' the time of the pretended levy. If effect were given to the levy, the landlords would be entirely deprived of the lien which they had a right to calculate on as their security for the rent. This cannot be ; the proceeding has operated as a fraud upon the landlords, and cannot be sustained. The motion of the landlords is therefore granted.

Mr. Justice Sutherland, gave no opinion in this case.