Van Rensselaer v. Quackenboss — 17 Wend. 34

Majority

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Van Rensselaer vs. Quackenboss.

Headnote

Where there is a year’s rent due to a landlord at the time of tho levy of an execution on the property of his tenant, and the landlord omits to give notice to the officer of his claim, until after the accruing of another year’s rent, he is entitled to only one year's rent, although subsequent to the accruing of the second year’s rent, new executions are levied upon the property by another officer, and notice is given to him by the landlord of the rent due.

It seems, that had the landlord given notice of his claim on the levy of the first execution, and had given a like notice on the levy of the second execution, that he would have been entitled to two year’s rent.

Where property taken under a distress warrant is converted by a stranger, trover will not lie in the name of the landlord: under the provisions of our statute, thi action must be in the name of the officer making the distress,^[1]

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The plaintiff brought an action on the case against the defendant for selling property belonging to one Van Schaick. a tenant of the plaintiff, and not paying over a year’s rent pursuant to notice; the declaration also contained a count in trover. The cause was tried at the Montgomery circuit in November, 1834, before the Hon. Esek Cowen, then one of the circuit judges.

Van Schaick was the tenant of the plaintiff of a farm at a rent of $300, payable annually, on the 1st April.

On the 22d October, 1833, the plaintiff issued a distress warrant for $1223-60, arrears- of rent, and delivered the same to a deputy sheriff, who distrained and advertised for sale all the personal property of the tenant. The deputy, at the time of receiving the distress warrant, had in his hands an execution issued on a judgment against the tenant, in favor of one Jacob Burton, for $198-50; by virtue of which a levy had been made on the property of the tenant on the 26th February, 1833, and on which execution there was a certificate dated on the same day with the levy and signed by one Adam Smith, to the effect, that he would not hold the sheriff liable for the property levied upon, and that the [35] sheriff might leave it in the possession of the tenant, at the risk of him the said Adam Smith. On the same day that the distress warrant was delivered to the deputy a notice was delivered to him by the plaintiff in these words: “Take notice that the sum of $1223‘60 is due to me for rent from J. Van Schaick, jun., for the farm on which he resides; which rent accrued between 1st April, 1824, and 1st April, 1833, being three hundred dollars due for the last year’s rent. The above amount of $L223’60 is the balance due for the said rents which accrued during the aforesaid period; ” which notice was duly verified. A similar notice was served on the same day on the defendant in the cause, who, as a constable, held in his hands two justices’ executions against the tenant; one in favor of Adam Smith and Jacob Burton, and the other in favor of John Ostrom. The execution in favor of Smith and Burton was issued 9th February, 1833, and was twice renewed; the first time on the 6th May, 1833, and the second time on the 13th August, 1833; on which last day a levy was made by virtue thereof on the property of the tenant. The tenant, however testified that a previous levy had been made in May, 1833. The second execution' was issued 27th May, 1833, and ws.s renewed 21st October, 1833, on which last day a levy was made by virtue thereof on the property of the tenant. The property thus distrained and levied upon was advertised to be sold, and was sold by virtue of the distress warrant and the said several executions on the 6th November, 1833, and the proceeds of the sale disposed of as follows. The deputy sheriff paid to the plaintiff $300, stated in the case as being the last year’s rent due and claimed by the plaintiff, next the several executions were satisfied, and then the residue of the proceeds of the sale were paid to the plaintiff as rent raised on the distress warrant. The deputy sheriff testified, that when the $300 were paid to the plaintiff, nothing was said either by the plaintiff or himself to which year it should apply; he however intended it should apply according to the notice for the last year’s rent. Upon this evidence, the plainti'ff claimed to recover of the defendant $300, the rent which fell due on the 1st April, 1333; but the judge directed [36] the plaintiff to be nonsuited, and a nonsuit was entered accordingly, which the plaintiff moved to set aside.

J. S. Van Rensselaer, for the plaintiff,

insisted that the $300 paid by the deputy sheriff should be applied to the extinguishment of the year’s rent which fell due on the 1st April, 1832, it being properly payable by the deputy sheriff under the execution levied by him on the 26th February, 1833. The execution being levied previous to the rent of 1833 falling due, the plaintiff as landlord of the defendant in the execution, had a right to require

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that the rent of 1832 should be paid before satisfying that execution. The $300 paid being thus appropriated, the plaintiff had a legal right to insist that the rent which fell due on the 1st April, 1833, should be paid before satisfying the executions in the hands of the constable, which were not levied until after the 1st April, 1833—the execution in the hands of the deputy affecting one year’s rent, and the executions in the hands of the constable affecting another year’s rent. The plaintiff thus being entitled to two years’ rent, and having received the rent of only one year in preference to the executions, was entitled to claim of the constable the second year's rent Secondly, he insisted that under the count in trover, the plaintiff was at all events entitled to recover the amount appropriated to the executions in the hands of the constable. The execution in favor of Smith and Burton was satisfied by the levy made in May, 1833, and the execution in favor of Ostrom was satisfied in like manner by the levy made under Smith and Burton’s execution on the 13th August, 1833, the constable then having in his hands the execution in favor of Ostrom as well as the other execution.

M. T. Reynolds, contra.

By the Court,

The plaintiff contends that as the execution in favor of Burton was levied in February, 1833, he was entitled under that execution to be paid the year’s rent which fell due on the first of April, 1832, and that the payment made to him by the deputy sheriff [37] who held the execution, should be so applied. He then insists that the defendant should have paid over to him the year’s rent which became due on the first of Apiil, 1833, on the executions of Smi.h and Burton, and of Ostrom, which were in the hands of the defendant, and were levied subsequent to that time. If the plaintiff, under the circumstances of this case, could have entitled himself to the amount of two years’ rent in preference to the execution creditors, I do not see how he can recover in this action. He sues for the rent which fell due on the first of April, 1833, and that rent has already been paid to him by the deputy sheriff. His notice was given in October, 1833, and was the same to both officers. It stated the balance of rent in arrear, but only claimed $300 for the last year’s rent. It is also stated in the case that $300, being the last year's rent due. and claimed by the plaintiff, was paid immediately after the sale. If this statement was open to explanation, the testimony of the deputy sheriff does not contradict, but. tends to confirm it. He says the money was paid agreeably to the notice ; that nothing was said between him and the plaintiff about the application, hut he intended to apply it according to the notice, for the last year's rent.

But I think the plaintiff could not have entitled himself to more than one year’s rent in preference to the execution creditors, if he had attempted to do so by his notice. Before the statute (8 Anne, ch. 14), executions took place or precedence of all debts which were not specific liens; even of rents due to landlords. This statute provided a new remedy for the landlord, but confined it to the amount of one year’s rent; on the principle that the laws favor those only who are diligent in asserting their rights (Henchelt v. Kimpson. 2 Wils. 140). Under our statute, the officer receiving notice, is directed to levy the rent claimed to be due, in addition to the amount of the execution, and to pay over the rent to the landlord; but the amount of rent to be levied shall not exceed the last year’s rent of the premises (1 R. S. 746, § 13). The plaintiff can not he entitled to a greater sum than he would have been had the executions all been in the hands of one [38] instead of two officers, and then the case is no more than this; there are several executions, one of which was levied before the rent fell due, in 1833, and the others afterwards; and then a sale takes place on all the ex-cutions. If a sale had immediately followed the first levy, the plaintiff might have given notice and entitled himself to the rent which became due

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in 1832; and if after the next year’s rent fell due there had been another execution, he could again have claimed a year’s -rent in preference to the judgment creditor. If the first execution became dormant, so that he could not have the statute remedy under it, he might perhaps have distrained for the rent, and thus have gained a preference over subsequent judgment creditors as well as over the first execution. But he did nothing until levies had been made and sales were about to be had under all the executions. His statute remedy at tha,t time only extended to one year’s rent. In Hoskins v. Knight (1 Maule & Selw. 245), the court of K. B. held, that the landlord was only entitled to receive the- amount due for rent at the time the sheriff took possession, and could not claim the rent which fell due while that possession continued. The case was put upon the literal meaning of the statute; and the court said that the words of the enacting clause expressly point to the time of the taking, and show that the legislature contemplated one-case only in aid of the landlord, viz: that of providing against the consequences of an execution sweeping awáy what is due for rent at the time the seizure is made. There is a difference in language between our statute and the 8th Anne, ch. 14, Woodf. Land, and Ten. 465; but it is not now necessary to decide whether there should be any difference in construction. The case of Hoskins v. Knight, did not involve the question whether the landlord could entitle himself to more than one year’s rent in the whole, but only whether he could claim rent falling due after the sheriff took possession and before the sale. If the plaintiff had given notice after the levy of the first execution, and again, on the levy under the other executions when another year’s rent had become due . it may be that he would have been entitled to [39] two years’ rent. But he only gave one notice, and that after all the executions had been levied and all the rent had accrued. In Dod v. Saxby (2 Str. 1023) after the landlord had been paid a year’s rent, there came another execution, and he then claimed another year's rent, and moved the court for a rule on the sheriff; but the motion was denied, “ for the intent of the act was only to continue a lien as to one year, and to punish him for his laches, if he let more run in arrear.” The plaintiff in this case has suf fered the rent to run in arrear when he had a remedy in his own hands' and the decisions do not warrant such a construction of the statute as will relieve him from the consequences of his own negligence.

The plaintiff insists that he can at least recover the amount paid over on the executions under the count in trover. The execution in favor of Burton, was no doubt fraudulent as against other creditors, if Smith had authority to make the arrangement which was entered into between him and the sheriff, to leave the" property which had been levied on with the debtor. But the defendant had nothing to do with that execution; it was in the hands of the deputy sheriff, and the plaintiff must seek his redress in that quarter. It is said that the execution in favor of Smith and Burton, had been satisfied by a levy in May, before it was renewed and levied in August, 1833. Nothing appears on this subject except from the testimony of Van Schaick. He says a levy was made in May. It does not appear that any property was removed, a receipt taken, or an inventory made. The most that can be inferred from his testimony is, that the officer came with the execution and told the debtor he levied on all his personal property. This was not such an act as would satisfy the judgment. The creditor still had the right to have the execution renewed, and to proceed under it. There was no evidence whatever to impeach the Ostrom execution. It was renewed on the 21st October, 1833, and levied the same day.

There is another objection to the action of trover for the goods. Formerly the landlord might distrain in person, and he might have maintained trover on his own possession against a wrong-doer. But now a distress for rent

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can only be made by a public officer (5 R. S. 501, § 3). After the distress, the goods, like those taken on execution, are in the custody of the law, and the officer alone can have an action if they are converted by a stranger.

New trial denied.