Whidden v. Toulmin

6 Ala. 104 | Ala. | 1844

COLLIER, C. J.

The question of the plaintiff’s right tobe paid his rent previous to the removal of the goods levied on by the defendant, depends upon the construction of the 35th section of the act of 1807, “concerning executions, and for the relief of insolvent debtors.” [Olay’s Dig. 210.] That section provides, that the goods and chattels being in or upon any messuage, lands and tenements, leased, &c. shall not be liable to be taken by virtue of any writ of execution, on any pretence whatever, unless the party so tak’ng the same shall, before the removal of the goods from such premises, pay or tender to the landlord or his agent, all money due for the rent of the premises “at the time of taking such goods or chattels in execution: “Provided, nevertheless, that such rent arrears do not amount to more than one yea/s? ■rent, &c.” This enactment is substantially a transcript of the 8 Ann. eh. 14, and the decisions touching the interpretation of that statute, are directly in point. In Hoskins v. Knight, [1 M. & S. Rep. 245,} the question was, whether the landlord was entitled to demand of the plaintiffs in execution, payment of rent Which accrued after the time of the levy, and during the continuance of the sheriff’s possession. The court held, that the terms of the act expressly pointed to the time of the taking, and shewed that the legislature contemplated one case only, in aid of the landlord, viz: to prevent an execution from taking away what is due for rent at the time when the seizure i® made; but the statute was not to be extended beyond its literal meaning. See, also, Gwilliam v. Barker, 1 Price’s Rep. 274, and Trappan v, Morie, 18 Johns. Rep. 1, in which the law is laid down in equivalent terms.

In Binns v. Hudson, [5 Binn. Rep. 505,] the same question was raised upon a statute analagous to our own. Tilghman, Chief Justice, in delivering the opinion of the court, remarked, that if the question were res integra, he should incline to the opinion* that the landlord could claim no rent which was not actually due at the time of the levy: But as it had been determined by his predecessors, that the growing rent may be apportioned, so that the landlord shall have it down to the time when the goods were taken by the sheriff; and as such construction had been uniformly followed, he thought it best to adhere to precedent. This case is worth nothing as an authority without the State in which it was determined; for the decision is not the result of the investigation of the court which made it — it is the mere echo of pr-ecedent, not approved, though acquiesced in. We think the English construction of the statute of Ann, lays down a rule more reasonable im itself, and consonant to principle; and to it we are willing to conform.

The facts agreed show, that at the time of the levy, no rent was due, but that so much as was due for the quarter preceding, had been fully paid. In this view of the case, the plaintiff cannot, with propriety, say that the defendant has deprived him of his lien, which the statute secured; for it is clear, that no lien had attached in his favor, if the view taken is correct.

In respect to the second question, we think that the facts stated in the record, do not entitle the plaintiff to recover for the u,n-reasonable detention of his house. The defendant in attachment was the lessee for twelve months, near five of which were unexpired at the time of the levy, and the defendant retained the key for two or three months, using the house for the safe-keeping of the goods which he found in it. it does not appear, that during all this time, the plaintiff demanded the possession, or otherwise asserted a right to it. Under these circumstances, the defendant might very well have concluded, that the plaintiff was willing to acquiesce in the continuance of the lease, until the expiration of the period stipulated; in fact, if it were competent for him to do so, that he did not wish to terminate it sooner. The defendant then, eannot be charged with damages upon the second ground alleged against him.

The consequence is, the judgment of the circuit court is affirmed.