26 S.C. 331 | S.C. | 1887
The opinion of the court wras delivered by
In September, 1884, William Knobeloch, as executor, leased to one William McComb two stores in Meeting street, Charleston, at the yearly rent of $1,300,
Soon after, other creditors of McComb instituted an action, Theodore A. Wilbur v. Frederick J. Smith, et al., to set aside the mortgage as being fraudulent and void, and really an assignment giving preferences in violation of section 2014 of the General Statutes. The mortgagee, Smith, answered, denying the allegations, and Knobeloch presented his claim for rent under his distress warrant as stated. An order of court was taken that the mortgagee should sell the property, the rights of all parties to be transferred to the fund; and then that action was compromised and discontinued, leaving in the court money sufficient to pay the claim of Knobeloch for rent, if it should be established.
The claim was presented and argued before Judge Wallace, who disallowed it; and Knobeloch, the landlord, appeals upon the grounds following: “I. Because it was error in the presiding judge to dismiss the petition of appellant. II. Because his hon- or erred in not holding that the distress levied was lawful and valid. III. Because his honor erred in not holding that the stock of goods mentioned in the petition, upon which the distress was levied, was, while on the premises of the landlord, subject to such levy, and that a lien in favor of the petitioner was by said levy created prior in rank to that of the mortgagee. IV. Because his honor erred in not decreeing that the petitioner, appel
The main question in the case is, whether, under our law, the stock of goods in ..the possession of Smith, the mortgagee, after condition of the mortgage broken, although still remaining on the demised premises, was, on April 22, 1885, liable to be dis-trained by the landlord for rent in arrear. We derived our law of distress for rent from England, where rent for the use and occupation of land is a highly favored claim. It is manifest that the whole law upon the subject was framed in the interest of the landlord. .The right is nowhere expressly given by statute, but it comes from the common law, which allowed the landlord, without the sanction of legal process, to issue his own warrant of distress, and deliver it to his bailiff, with authority to summarily seize all the goods and chattels, with certain known exceptions, which could be found on the demised premises, whether they belonged to the tenant or a stranger. This great power was defined, protected, and enlarged by certain statutory provisions, and notably by a statute “for the better security of rents, and to prevent frauds committed by tenants,” which was made of force in this State (2 Stat., 547), and generally known as the statute of Anne, which, among other things, provided that if the tenant fraudulently removed his goods from the premises to escape distress, the landlord, within five days, might follow and seize them under his warrant; “provided that nothing within this act contained shell extend or be construed to extend to empower such lessor or landlord to take or seize any goods or chattels as a distress for arrears of rent, which shall be sold Iona fide and for a valuable consideration before such seizure made.”
For a period, no part of the law of distress was of force in this State, having been repealed by the sweeping words of section 20 of the attachment act of 1868, which declared that “distress for non-payment of rent as heretofore existing is abolished.” 14 . Stat., 106. But in June, 1877, the law of distress was re-enacted in terms well-nigh as sweeping and general as those of the. repeal, viz., “That the first ten words of section 20 of an ‘act to
In 1878 a more formal act was passed: “To restore the remedy of distress for rent,” which not only repeated the repealing'act of 1877, but went further, and affirmatively declared as follows: “And the said act, entitled ‘an act for the better security of rents and to prevent frauds committed by tenants’ (Anne) is hereby re-enacted and made of force in this State. Provided, that no property shall be seized under a distress warrant for rent except such as belongs to the tenant in his own right.” 16 Stat., 511. In 1882 the general statutes expressly re-enacted the provisions of the aforesaid statute of Anne — setting them out in full in sections 1824 and 1825, and then follows section 1826, in these words: “Nothing herein contained shall extend, or be construed to extend, to empower such lessor or landlord to take or seize any goods or chattels as a distress for arrears of rent which shall be sold bona fide and for a valuable consideration before such seizure made; and no property shall be seized under a distress warrant for rent, except such as belongs to the tenant in his own right.”
In this state of the law, it is strongly urged for the appellant that the above section of the general statutes (1826), having in it the very words of the proviso to the statute of Anne, must be construed to be nothing more than a proviso to that statute, and as that deals alone with property removed from the premises, the proviso must also be limited to property so removed, and does not apply to that which remained on the premises. This is most certainly a new view, and we must say an ingenious one. It is true the important words of section 1826, General Statutes, down to those italicized as quoted above, and ending with the words,, “seizure made,” are identical with those of the proviso of the statute of Anne, and doubtless the draftsman had the proviso before him when he framed that section. It cannot, however, escape observation, that the provision is neither stated as a proviso, nor makes any reference whatever to that statute, but ap-\
But, passing that, under the construction contended for, what becomes of the remaining part of the section which is in italics ? It is argued that inasmuch as it was placed -in the same section with the proviso of the statute of Anne; it must be considered as only an amendment of that proviso, and must therefore relate only to such property as was removed from the premises. We cannot accept that construction. The provision in question was never any part of the statute of Anne. It is true that it first appeared as a proviso in the act of 1878, which, among other things, repeated the re-enactment of the statute of Anne, already made of force in 1877; but we do not think that it was intended to be merely a proviso to that statute. In the first place, the terms of that statute were not set out, but it was made of force by a general declaration to that effect; and then the statute of Anne, then being declared of force, contained within itself the proviso we have just considered, in reference to a bona fide sale of the goods removed, and consequently there was no need of a second proviso, protecting such property as did “not belong to the tenant in his own right.” The property of a stranger was in danger of its being seized only when on the premises, and when removed needed no protection. Besides, the provision enacted in 1878, and formally repeated in the general statutes of 1882, is in positive terms clear and absolutely unlimited: “And no property shall be seized under a distress warrant for such (arrears) except such as belongs to the defendant in his own right.” We cannot doubt that this provision, so solemnly enacted and re-enacted, and so general in its terms, was intended to be a distinct and independent provision of law, embracing all chattels whether removed or still remaining on the premises. Such has been taken to be the proper construction by this court in several cases. See Wallace v. Johnson, 17 S. C., 456, and Sullivan v. Ellison, 20 Id., 481.
The next question is, whether the stock of goods, when it wTas seized under the distress warrant on April 22, 1885, did, in the sense of the act, “belong” to McComb, the tenant, in his own right. In considering this subject we are obliged to assume that
The case of Trescott v. Smyth, supra, was, like this, in refererence to the ownership of property seized under a distress warrant. The act of 1799 (7 Stat., 435) provided as follows : that “No slave shall be liable to be distrained, or shall at any time be distrained, for house rent, or any other rent, unless such slave shall belong to such person as may be lawfully liable to or chargeable with such rent,” &c. John Smith, a tenant, was in arrears for rent, and his landlord distrained a negro woman, Molly, who was on the premises, but was under mortgage to one Grimke. It was held that Molly, being mortgaged, and the condition of the
From the view taken by the court it will not be necessary to go into the points made as to the alleged irregularities and defects of the distress warrant.
The judgment of this court is, that the judgment of the Circuit Court be affirmed.