113 F. 136 | W.D. Pa. | 1902
In this case $85, the rent of Hoover, the tenant, was in arrear, and his landlord lawfully distrained for that sum. Under the statutes and decisions of Pennsylvania he
“The goods and chattels being in or upon any messuage, lands or tenements, which are or shall be demised for life or years, or otherwise taken by virtue of an execution, and liable to the distress of the landlord, shall be liable for the payment of any sums of money due for rent at the time of taking such goods in execution: provided, that such rent shall net exceed one year’s rent.”
The bankrupt court having taken possession oí this property, thus liable for the rent, its process whereby the same was sold timst, for the purposes of this statute, be regarded as an equitable execution. The case is within the equity of the statute. Longstreth v. Pennock, 87 U. S. 575) 22 L. Ed. 451. The property sold was, when received by the bankrupt court, subject to a lawful lien by reason of the distress, and by the act quoted was made liable for the rent due. iludí lien and priority, by virtue of the Pennsylvania statute, was one recognized and enforced by section 64, cl. 5, of the bankrupt act. The claim, then, being one whose validity and priority were recognized both by state and bankrupt law, and the property coming to the bankrupt court for administration subject to a lien as against which the owner had waived the benefit of the exemption law, it is dear the bankrupt cannot, by claiming the benefit of such waived statute, annul or lessen the grasp of such existing lien. The case of In re Bolinger, 6 Am. Bankr. R. 171, 108 Fed. 374, decided by this comt, does not rule the present one. Its facts were different. It was there said:
“The preference created by tlie execution being Illegal, the incident of such execution preference, to wit, the waiver of the exemption as against the enforcement of the debt on valid lawful process, must be deemed to have fallen with the expired unlawful preference.”
The present case turns on its own facts, and what is now decided is that where a landlord, prior to his tenant’s bankruptcy, has dis-trained for rent overdue on a lease waiving the benefit of the exemption law of Pennsylvania, the bankrupt is not entitled, as against the landlord, to claim an exemption of articles distrained, where the rest of the distrained articles are not sufficient in value to pay the rent.