24 Minn. 584 | Minn. | 1877
The main question presented by this case is whether the common-law right of a landlord to distrain for rent in arrear, exists in this state. Section 12 of the organic act of the territory of Minnesota (passed March 3,1849,) provides that “the laws in force in the territory of Wisconsin, at the date of the admission of the state of Wisconsin, (May 29, 1848,) shall continue to be valid and operative therein,” (i. e. in the territory of Minnesota,) “so far as the same be not incompatible with the provisions of this act, subject nevertheless to be altered, modified or repealed by the governor and legislative assembly.” The constitution of this state, (adopted in 1857,) in section 2, of the schedule, declares that “all laws now in force in the territory of Minnesota, not repugnant to this constitution, shall remain in force until they expire by their own limitation, or be altered or repealed by the legislature.”
If, at the date of the admission of the state of Wisconsin, the common-law right of distress for rent was in force in the territory of Wisconsin, it is in force here, if it is not incom
It is claimed, however, that by the Revised Statutes of the territory of Minnesota, c. 137, § 1, the Wisconsin statute of 1839, referred to in the opinion of the court in Coburn v. Harvey, was repealed. If this be admitted, it does not follow that the right of distress was thereby taken away. This law of 1839, as the supreme court of Wisconsin say, “recognized the existence of this right,” and “assumed it as already existing. ” The repeal of this law (a statute regulating the action of replevin where the property had been taken for a distress) did not take away the right of distress, since the statute did not create the right, but merely testified to its existence by recognizing it and assuming it to exist. That it was not in fact the intention of the Revised Statutes, either in chapter 137, § 1, or elsewhere, to take this right away, is fairly inferable from Rev. St. c. 70, § 39, which prescribes the place of trial of an action “for the recovery of personal property distrained for
Upon this question of repeal, Rev. St. c. 49, §§ 31, 32, 33, are also of some value. Section 31 enacts that every person in possession of land out of which rent is due shall be liable for the proportionate amount of rent due from the land in his possession, although it be only a part of what was originally demised. Section 32 enacts that such rent may be recovered in a civil action. Section 33 provides that “nothing contained in the preceding sections shall deprive landlords of any legal remedy for the recovery of their rent, whether secured to them by their leases, or provided by law.”. This section, though it is not conclusive, has some tendency to show that it was the intention of the Revised Statutes to preserve whatever legal remedies for the recovery of rent were possessed by landlords, and, among others, the remedy by distress, which, as we have before endeavored to show, was “provided by law. ”
What we have thus said with reference to the Revised Statutes is equally applicable to the General Statutes, in which Rev. St. c. 70, § 39, appears as c. 66, § 38, and Rev. St. c. 49, §§ 31, 32, 33, appear as c. 75, §§ 18, 19, 20.
Our references to these provisions of the Revised and General Statutes, and our comments upon them, are also a sufficient answer to the position taken by the plaintiff’s counsel that “the theory of our code is inconsistent with, and repugnant to,” the remedy by distress.
The plaintiff’s counsel argue that the remedy by distress is
The other grounds upon which plaintiff’s counsel claim that the right of distress is incompatible with our constitution are not very much insisted upon, and it seems to us that no argument is needed to show them to be untenable. Upon this branch of the case, then, our conclusion is, that, as at the date of the admission of the state of Wisconsin into the Union, the landlord’s common-law right of distress for rent in arrear was in force in the territory of Wisconsin, and as such right of distress is not incompatible with the provisions of our organic act, nor repugnant to the constitution of this
With reference to the statute 2 Wm. & Mary, c. 5, which gave the right to sell a distress, (in that respect changing the common law,) we agree with the supreme court of Wisconsin in Coburn v. Harvey, 18 Wis. 147. It is there held, upon grounds to which we see no objection, that the common law of a state which had no political existence before the revolution, is the common law as modified and amended by English .statutes passed prior to our revolution. This definition, of course, has no reference to such portions of the common law as are inapplicable to a given state, or to any changes or repeals which may have been effected by legislation in such .state. As the statute of William & Mary was passed long before the revolution, it was held to be part of the common law of distress in Wisconsin, and, for the same reason, it is lo be held to be part of the common law of Minnesota.
This disposes of the main question in the case, and brings us to consider the plaintiff’s objections to the manner in which the distress was made.
The lease under which the rent distrained for accrued was made by George Culver, John Farrington and William J. Cullen, owners of the leased property. Culver and Farrington are defendants in this action. The other defendants, except Mullins, are the heirs at law of Cullen, who has ■deceased, and are owners of his interest in the demised premises. All of the defendants, except Mullins, joined in the distress, and by their warrant authorized and empowered Mullins, as their bailiff, for them and each of them, to dis-train, etc.
By the terms of the lease the rent was payable, one-half to ■Cullen, and the other half in equal portions to Culver and Farrington. The warrant specified the whole amount of rent due, and the proportion of the same due to each of the distrainors. It appeared also that Culver was holding the' property distrained as assignee under an assignment, the validity
It is further claimed that the distrainors, being tenants in common, could not make a joint distress. The rule certainly is that such tenants should distrain severally. Taylor Land. & Ten. § 569. We are, however, of opinion that the joinder may properly be regarded as an irregularity in the manner of procedure. As such it is covered by the statute 11 Geo. II., c. 19, by which, as Blackstone says, (3 Com. 15,) it is provided “that for any unlawful act done (in the taking of a distress) the whole shall not be unlawful, or the parties trespassers-ab initio; but the party grieved shall only have an action for the real damage sustained, and not even that, if tender of amends is made before any action is brought.” See also Taylor Land. & Ten. §§ 613, 614, 736, 737.
It is further objected by plaintiff that there was no right of distress in this instance, because the rent was -not fixed or certain. By the terms of the lease the rent is to be, not a precisely named sum of money, but ten per cent, of,the gross receipts and earnings of the leased property, to be estimated upon a full account made up at the end of each month. Upon the maxim id cerium est, etc., this provision of the lease sufficiently fixes and ascertains the rent; for it is capable of being reduced to a certainty by computation. Smith v. Fyler, 2 Hill, 648; Taylor Land. & Ten. §§ 561, 562. Besides,
Order affirmed.
After the above-entitled case was submitted to this court, but before its decision, the legislature passed an act, approved March 3, 1877, which reads as follows, viz.: “Be it enacted, etc. Section 1. That the remedy by distress for rent is hereby abolished. Sec. 2.' This act shall take effect from and after its passage.” Laws 1877, c. 140. (Gen. St. 1878, c, 75, § 39.)
This case came to this court upon an appeal from an order overruling a demurrer to the defendants’ answer. The question before this court was simply whether the demurrer was properly overruled. Upon this question, it is apparent that the act of March 3d can have no possible bearing. Hence, its passage furnishes no support whatever to the plaintiff’s motion for a reargument of the case. The motion is, therefore, denied.
The effect of the act mentioned upon the rights of the defendants under the distress made by them was fully discussed upon both sides, on the motion for a reargument, and, although its determination is not necessary to the disposal of the motion, it is very important to all concerned, with reference to future proceedings. We will, therefore, depart from our customary practice, and briefly express our opinion as to the effect of the act referred to. The act is, in terms, both prospective and retrospective; for it assumes to abolish the remedy by distress — that is, to destroy it utterly and completely. But, in our opinion, it was not competent for the legislature to give the act a retrospective effect, as respected
Upon this motion for a reargument it is insisted that, in holding, in the opinion filed in this case, that a landlord’s common-law right of distress for rent in arrear existed m this state, the court erred, because this right of distress was an incident of feudal tenure, and by section 15, article 1, of our state constitution, “All lands within this state are declared to be allodial, and feudal tenures of every description, with all their incidents, are prohibited.”
As respects this ground of the motion for reargument, we are of opinion that, independent of express contract, the right of distress for rent originally existed at common law only in favor of a reversioner as an incident of a feudal tenure) but that, in process of time, the common law was so far changed, both directly and consequentially, by legislation, and notably by the act of 4 Geo. II. c. 28, § 5, as to extend the remedy to every species of rent, whether accruing under a feudal tenure or not, and that, as a result, the right of distress ceased to be an incident of feudal tenure, and became .an incident of the relation of landlord and tenant. But it is claimed that the act of 4 Geo. II. has never been in force in this state, and the same claim is made with reference to the act of 2 Wm. & Mary, c. 5, referred to and relied upon in the before-mentioned opinion of this court. Both of these acts are statutes amendatory of the common law of distress for rent in arrear, and, of course, both were passed long before our revolution. In the opinion heretofore filed in this case, it was held that the act of Wm. & Mary is in force in this state, upon the ground that the common law of a state which had no political existence before the revolution is the common law as modified and amended by English statutes passed prior to the revolution. This general proposition, it was remarked, has no reference to such portions of the common law, or of its modifications or amendments, as are inappli
Upon this topic, Mr. Justice Cooley says: “From the first, the colonists of America claimed the benefit and protection of the common law. In some particulars, however, the common law, as then existing in England, was not suited to their condition and circumstances in the new country, and those particulars they omitted as it was put in practice by them. They also claimed the benefit of such statutes as from time to time-had been enacted in modification of this body of rules. * * * While colonization continued — that is to say, until the war of the revolution actually commenced, * * * * the changes made in the common law were operative in America also, if suited to the condition of things here. * * * * When, therefore, they emerged from the colonial condition into that of independence, the laws which governed them consisted, first, of the common law of England, so far as they had tacitly adopted it as suited to their condition; second, of the statutes of England or of Great Britain, amendatory of the, common law, which they had, in like manner, adopted; and third, the colonial statutes. The first and second constituted the American common law.” Cooley's Const. Lim. 22-25.
What we have said is, of course, independent of the effect of the ordinance of 1787, and the act of congress continuing the same in force and effect. We have been referred by counsel to sundry acts adopted by the governor and judges, who were invested with certain legislative authority under the early territorial organizations, and also to an act passed by the legislature of tb.9 territory of Wisconsin, in 1839. (Stat. of Wis. 1839, 404-7.) As to the repeal of the acts of the parliaments of England and Great Britain, attempted by the former, there is certainly room for great doubt as to the authority of the governor and judges to enact any such repeal. But, irrespective of this, we do not think that the repeal thus attempted, or the repeal of the statutes of Great Britain, by the act of 1839, by the legislature of Wisconsin, are entitled to be considered as extending to such statutes as were amendatory of the common law. It is not reasonable to suppose that it was intended to restore the common law as it was before it was ameliorated by these amendments; yet, in many if not all cases, this unhappy consequence would appear to follow, if these amendments were intended to be embraced in the repealing acts mentioned.
Our opinion is, that the acts mentioned referred to English and British statutes other than those amendatory of the
Upon this motion for a reargument, the grounds of the reargument asked for were, and were understood to be, fully presented, as if a reargument had been allowed. As it appears, from what we have said above, that our views are unchanged, and that we adhere to the opinion heretofore filed in the case, it follows that the motion for a reargument must be denied.
Ordered accordingly.