Evans v. Hamrick & Cole

61 Pa. 19 | Pa. | 1869

The opinion of the court was delivered, Eebruary 8th 1869, by

Agnew, J.

At the- time of the service of the attachment Hamrick & Cole, the garnishees, were tenants for a term of years under rent reserved, payable quarterly. Owen Evans, the defendant in the judgment, had purchased their landlord’s reversion. The rent in question did not fall due until the following January, after service of the attachment. In the meantime Owen Evans was decreed a bankrupt, and his rights of property including the reversion passed to his assignee in bankruptcy. Clearly the rent which had not fallen due followed the reversion and passed with it to the assignee. It is to be noticed in the outset, this is not a foreign attachment, but an execution attachment. In .foreign attachment the land itself can be attached, and a lien obtained which carries with it the accruing rents. But an attach-, ment in execution cannot be levied of land — that the fi. fa. must reach — the attachment is levied only of debts or choses in action. In this case there was not even a personal covenant, and the garnishees were liable to Owen Evans only through privity of estate. But this is of no moment, as had he been their landlord by covenant, then the rent not yet due was not a debt. It was an incident of the reversion, a part of it, and was itself therefore a part of the realty; and a levy on the reversion which it was competent for the plaintiff to have made on a fi. fa. would have fastened upon the rent as its incident, and carried it over by a sale to the purchaser of the reversion: Menough’s Appeal, 5 W. & S. 432; Boyd v. McCombs, 4 Barr 146; Johnson v. Smith, 3 Penna. R. 500; Bank of Pennsylvania v. Wise, 3 Watts 404. When the attachment was laid in the hands of the garnishees they were not debtors to Owen Evans. Had the rent fallen due afterwards, then on the principle of after-accruing funds coming into their hands, the attachment might have held the rent. But before this event happened, the reversion to which the rent was incident passed out of Evans into his assignee in bankruptcy by operation of law. There was, therefore, no debt for the attachment to operate upon. The land, that is the reversion-, in the hands of Owen Evans was not subject to the lien of the plaintiff’s judgment. Nor had he even the lien of a fi. fa. on the land. There was nothing therefore to arrest the passing of the title to the reversion and preserve it for the plaintiff. The judgment was right and must be affirmed.

Affirmed.