Denham v. Harris

| Ala. | Jan 15, 1848

DARGAN, J.

The act of 1807 (Clay’s Dig. 210) which provides, that no goods or chattels, lying or being on any messuage, lands or tenements, leased for life, or term of years, or at will, or otherwise, shall be liable to be taken on execution, on any pretence, unless the party, before removing the goods, shall pay the rent then due, provided the same do not amount to more than one year’s rent, has received a construction by this court in the case of Whidden v. Toulmin, 6 Ala. R. 104, that we now approve, which is, that the lien, or right of the landlord to demand payment of the rent, at the time of the levy, is confined to the rent due at the 'time of the levy, or seizure of the goods, and does not extend to rents falling due after the levy. The act above referred to, is substantially the same as the act of 8th Ann, c. 14, which has received the same construction, in the case of Hoskins v. Knight, 1 Maule & Selwyn, 247. In this case the court held, that the rent due at the time of the taking by the sheriff, was all that could be demanded by the landlord, and that rent falling due after, the levy, or seizure, could not be demanded. So in 18 Johns. 1" court="N.Y. Sup. Ct." date_filed="1820-05-15" href="https://app.midpage.ai/document/trappan-v-morie-5474268?utm_source=webapp" opinion_id="5474268">18 John. 1, a levy was made by the sheriff on goods of a tenant, in July, and there was a quarter’s rent due the landlord in May preceding; the sheriff permitted the goods to remain on the premises until September, after the levy, and another quarter’s rent fell due in August, whilst the goods were yet on the premises. The goods being removed and sold in September, the landlord moved to have the proceeds applied to the payment of the two quarters’ rent, due the first of May and August • but the court said, the statute gave a lien to the landlord for the rent due at the time of the levy, not for that falling due after the levy, although the goods remained on the premises until the next quarter’s rent fell due. The court ordered the sheriff to pay the landlord the rent due the first of May preceding the levy only. This construction of the same act has been recognized in 3 Wend. 444" court="N.Y. Sup. Ct." date_filed="1830-01-15" href="https://app.midpage.ai/document/cook-v-tousey-5513296?utm_source=webapp" opinion_id="5513296">3 Wend. 444.

These authorities show, that the rent that the landlord is entitled to demand, is the rent due at the time of the levy, not the rent subsequently falling due. The only question therefore is, what rent was due at the time of the levy? The levy of the attachment was in March, 1846, but the sheriff did not remove the goods until the levy of the execution. Yet there can be no difference between a levy or seizure by an attachment, and a levy by execution. In both instances, the possession of the defendant is divested, and the possession vested in the sheriff, for the purposes designated in the writ. Consequently, if goods be levied on by execution, or by attachment, the landlord can demand of the sheriff only the rent due at the time of the levy; not that falling due after the levy. Testing the record by this rule, the court erred. The plea that the goods were levied on in March, before any rent was due, and remained in the custody of the law, was good, and the petition shows, that even at the time of the levy under the execution, the note for rent was not due, and if this be so, no demand could be made on the sheriff for rent, for none was due at the timo of the levy made by the execution, and clearly none at the time of the levy of the attachment. It therefore follows, that the judgment of the circuit court, so far as it orders the sheriff to pay the defendant in error the amount of the note given for rent, is erroneous.

The second objection, or plea, that the taking of the note of Steetz, with Ulmer a security, was a waiver of the lien of the landlord, cannot be sustained. The right, or lien of a landlord, is a legal right, not a mere equitable lien, and befóte the court can say, that the landlord has waived or abandoned this legal right, there must be some plain evidence to show it. The mere fact, that he has seen fit to increase .his security for rent, by requiring another name to be bound with the tenant, cannot be construed, in the absence of all other proof, as a waiver of his statutory right.

For the error before alluded to, let the judgment be reversed and the cause remanded.