| Pa. | Jul 1, 1860
The opinion of the court was delivered by
The lease of 8th May 1851 was to become
The auditor finds that the engine of the mining company, who had succeeded to the rights of the original lessee, stopped about the 8th or 9th of April 1854, and that after that period no work was done by the company. At the end of twelve consecutive months from that period, therefore, there was, by force of the original contract, a surrender of the term to the landlord, and a merger of it in his reversionary estate. There was also a complete and final severance of the relation of landlord and tenant for all purposes. From April 1855, there was no lease, no landlord or tenant, and of course no rent.
' But though mining operations ceased in April 1854, Davis was entitled to be paid his rent for the year of inaction that was to work a forfeiture of the lease, because, by the terms of the lease, it was to be paid in advance — “ the sum of $250 in advance every six months.” He claims out of the money in court six months’ rent from the 8th May 1854. That money was brought into court upon a fi. fa., issued to April Term 1858, under which personal property of the mining company, found on the demised premises, had been sold.
It is objected, that the landlord is not entitled to be paid his half year’s rent, because of the dissolution of the relation of landlord and tenant, three years -before the levy and sale by the sheriff; and Greider’s Appeal, 5 Barr 425, is relied on. We do not think that case rules the question here. The lease was surrendered there by the tenant, between the time of the levy and sale of his goods, and when no rent was due and payable to the landlord. The effort was to apportion the rent, and thus claim it against the execution-creditor; but the court held that those adjudged cases which permitted landlords to apportion rent, and claim up to the time of the sheriff’s levy, did not apply to a case in which there had been an express and voluntary surrender of the term. It was argued on authority, that the surrender drowned and extinguished the lesser estate of the tenant, and that rent, reserved and issuing out of that estate, but not due at the time of surrender, was also extinguished. But in our case the rent was due, as I have shown, at the time of surrender, and that distinguishes it strongly from Greider’s Appeal.
Still, however, the landlord’s right is to be measured by the Acts of Assembly. The 15th section of the Act of 16th June 1886 provides, that 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
It is argued with great confidence, that there must he an existing tenancy at the time of the execution, to entitle the landlord to claim his rent; and an inaccurate remark to this effect is quoted from a Common Pleas opinion, that was affirmed in Parker & Keller’s Appeal, 5 Barr 392. I say it is inaccurate, because the landlord’s right to claim, as against the execution-creditor, exists whenever the goods sold are “ liable to the distress of the landlord,” and by the 8th section of the Act of 21st March 1772, “ it shall and may he lawful for any person or persons having any rent in arrear, or due upon any lease for life or lives, or for one or more years, or at will, ended or determined, to distrain for such arrears, after the determination of the said respective leases, in the same manner as they might have done if such lease or leases had not been ended or determined — provided that such distress be made during the continuance of such lessor’s title or interest.” The statute of 8th Anne limited the landlord’s right to distress to six months after the determination of the lease, but ours gives it whenever the rent is in arrear, and the landlord' retains his title.
Now, if there must be, as is argued, a subsisting tenancy to give the landlord a right to participate in the proceeds of a sale of goods found on his premises, there must be a subsisting tenancy to give him the right of distress, which were to repeal the Act of 1772. No attentive reader of the Act of 1836 can doubt, that the legislature meant to substitute the landlord’s claim on the proceeds of the execution sale for his right of distress. Where one existed the other was intended to be conferred. The substitution was limited to a year’s rent, but to that extent the substitution was complete. True, the premises are spoken of as “ demised” premises, and this court refused, in Martin’s Appeal, 5 W. & S. 220, to allow a landlord to take out of the sale of his tenant’s goods rent agreed to be paid in advance on another lease not then commenced. “ The second demise,” said Judge Sergeant, “ is as much a distinct and independent transaction as if it had been to a stranger.” Nobody would contend that a tenant’s goods should pay rent due from a' stranger. But though the Act of 1836 is expressed with less precision than that of 1772 (legislative language is not one of the things which improve with time and growth), yet its necessary construction seems to he, that the “ person having any rent in arrear,” to use the words of the Act of 1772, who may levy a distress on goods, may claim a year’s rent out of the sale of them; and that the reference to the demised premises may be satisfied, by considering it, not as defining a subsisting lease, but as pointing out the place where the goods are to be levied. Certainly the legislature of 1836 did not mean
It follows, from our reading of these Acts of Assembly, that Davis and wife might have distrained these goods,, though their lease was ended three years before, and therefore that they were entitled to claim out of the proceeds half a year’s rent due and in arrear, and accordingly the decree of the court is affirmed.