24 N.J.L. 668 | N.J. | 1855
The sheriff having sold the goods of the defendant lying and being on certain premises in which Mrs. Ann Coffin had a life estate, she claimed to be paid a year’s rent, pursuant to the statute. (Rev. Stat. 86, sec. 4.) A rule having been obtained that the sheriff pay the money into court, and that the plaintiff in the execution show cause why the rent claimed should not be paid to Mrs. Coffin, it was now moved to make this rule absolute. It appeared by a state of the case, agreed upon between the parties, that the premises occupied by the defendant in the execution, wore devised to Mrs. Coffin for life, with remainder to Mrs. Peter - son, wife of said defendant. For several years before the levy and sale, the defendant resided on and occupied the land, built a large dwelling house on, and otherwise improved it. Mrs. Coffin, for several years during the existence of her said interest, from time to time received sums oí money, and articles of convenience and necessity, from the said defendant; but said occupation and use of the said premises, and such compensation and payment, were had and made without any contract or agreement between them for or on account of said use and occupation, and no fixed price or rent was ever agreed upon between them. The yearly value of the premises without including the improvements made by defendant, was agreed to be five hundred dollars, and including those improvements, eight hundred dollars.
The statute under which this claim is made, was originally copied from the English statute, 8 Anne, ch. 14, § 1. It has been since changed so as to include rent accrued up to the day of sale, whether by the terms of the lease the day of payment shall have come or not; but this change does not affect its meaning in reference to the question now in dispute. It was intended to give the landlord a specific lien on the property, against all executions, to the extent cf a year’s rent, co-extensive with his right of distress. (Woodfall 563; 5 Bar. & al. 88; 4 Cow. 576.) It is well settled that to entitle a landlord to distrain, a certain rent must bo reserved and made payable at a certain time. (Arch. L. & T. 105, and cases.) The eases of Knight v. Bennett, 3 Bingh.
Nothing is said in the statute about the sheriff’s paying the rent to the landlord. He is expressly forbidden to take the goods, unless the party at whose suit the execution or attachment is sued out, shall pay the rent in arrear, not exceeding one year’s rent; and then the sheriff is required to levy and pay the rent, in addition to the money to be made by virtue of the process. The remedy of the landlord is by action against the sheriff, or if he thinks proper, he may apply to the court, as has been done in this case, to have his rent paid over to him out of the proceeds of the sale in the sheriff’s hands, (Arch. L. & T. 252.) Unless the sheriff was liable to an action for removing the goods before the rent was paid, the court will not interfere. In the case of Risely v. Ryle, 11 Mees. & Wel. 16, it was expressly ruled by the court of exchequer, that to entitle the landlord to an action against the sheriff, it must appear that the premises were holden at a rent certain, for which the plaintiff might by law distrain. The parties in this case have agreed that the premises were of a certain yearly value; but in the absence of such agreement, if compensation might be allowed to the landlord in the nature of rent, when the parties themselves had never directly or indirectly fixed any sum, the court would be called on to assume the province of a jury in assessing uncertain damages; or if in such a case, it was held the duty of jjie plaintiff in execution to pay, before the sheriff could sell, some mode of assessment would have to be resorted to, before it could be [known how much he was to pay. The statute could not have contemplated such a proceeding as that. The language adopted in extending the
I am therefore of opinion that the rule to show cause must be discharged, with costs.
