142 F. 593 | N.D.W. Va. | 1906
(after stating the facts as above). This case as presented upon the original hearing before the referee did not, in my judgment, involve much difficulty. It was clearly determinable under sections 7 to 15, inclusive, of chapter 93 of the Code of West Virginia (1899), which expressly create a lien for rent and constitute the procedure for its recovery. Section 11 provides:
“The distress may be levied on any goods -of the lessee, or his assignee or under tenant, found on the premises, or which may have been removed therefrom not more than thirty days. If the goods of such lessee, assignee, or under tenant, when carried on the premises áre subject to a lien, which is valid against his creditors, his interest only in such goods shall be liable to such distress. If any lien is created thereon while they are on the leased premises, they shall be liable to distress, but for not more than one year’s rent, whether it shall have accrued before or after the creation of the lien.”
The twelfth section provides that a person securing a lien upon goods' after the commencement of a tenancy can only remove them from the premises by paying the rent in arrear and. securing that to accrue to the extent of one year’s.rate as fixed by the lease.
In the case of Anderson v. Henry, 45 W. Va. 319, 31 S. E. 998, Judge Brannon has very clearly and ably discussed these provisions, holding that their effect is to give a lien for one year’s rent, whether accrued or not, on tenant’s goods carried on the premises over all liens by deed of trust, mortgage, or otherwise, created after tenant’s term, whether distress warrant therefor has issued or not, and that the fourteenth amendment to the Constitution of the United States
The referee sustained a demurrer to this petition, and therefore we must, in reviewing his action, take, as he was required to do, the allegations of it to be true, and, moreover, construe them most favorably to the petitioner. We must not, however, overlook the fact that proceedings in bankruptcy are wholly equitable in character and governed by the ¿rules of equity practice, where not in conflict with the direct provisions of the act itself. Also, that referees in their hearings within the scope of their power are clothed with the authority of judges, and their orders and decrees are to be reviewed, reversed, or annulled under the same rules and conditions as those governing other courts of equity, subject always to the express provisions of
The only possible ground upon which this petition could be maintained for the purpose of securing a review of the decree would be the new facts setting up the estoppel of the Jacksons to assert their rent lien. But these facts cannot possibly be considered now. They were known to Fouse when he filed his original demurrer, answer, and protest to the Jacksons’ claim. There was no possible reason why he should not have set them up and relied on them in that pleading. They were based upon his own knowledge, derived from his own conversation with the landlord’s agent, and he does not attempt to give any reason why he failed to bring them forward in the original hearing.
It is very clear to me that this petition does not comply with any of the rules authorizing it to be filed, and that the referee acted rightly in rejecting it upon demurrer.
I find no error, therefore, in the two orders of the referee complained of, and they will be, in all respects, affirmed.