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A distress is defined to be the taking of a personal chattel, without legal process, from the possession of the wrong doer, into the hands of the party grieved, as a pledge for the redress of an injury, the performance of a duty, or the satisfaction of a demand. It is a general rule that a man who has an entire duty, shall not split the entire sum and distrain for part of it at one time, and part of it at another time. But if a man seizes for the whole sum that is due him, but mistakes the value of the goods distrained, there is no reason why he should not afterwards complete his execution by making a further seizure. It is to be observed also, that there is an essential difference between distresses at common law and distresses prescribed by statute. The former are taken nomine penae, as a means of compelling payment; the latter are similar to executions, and are taken as satisfaction for a duty. The former could not be sold the latter might be. Their only similarity is that both are replevisable. A consequence of this difference is that averia carucae are distrainable in the latter case, although there be other sufficient distress.
The remedy by distress to enforce the payment of arrears of rent is so frequently adopted by landlords that a considerable space will be allotted to this article under the following heads: 1. The several kinds of rent for which a distress may be made. 2. The persons who may make it. 3. The goods which may be distrained. 4. The time when a distress may be made. 5. In what place it may be made. 6. The manner of making it, and disposing of the goods distrained. 7. When a distress will be a waiver of a forfeiture of the lease.
Of the rents for which a distress may be made. 1. A distress may generally be taken for any kind of rent in arrear, the detention of which, beyond the day of payment, is an injury to him who is entitled to receive it. The rent must be reserved out of a corporeal hereditament, and must be certain in its quantity, extent, and time of payment, or at least be capable of being reduced to certainty. An agreement that the lessee pay no rent, provided he make repairs, and the value of the repairs is uncertain, would not authorize the landlord to distrain. Where the rent is a certain quantity of grain, the landlord may distrain for so many bushels in arrear, and name the value, in order that if the goods should not be replevied, or the arrears tendered, the officer may know what amount of money is to be raised by the sale, and in such case the tenant may tender the arrears in grain. But where the tenant agreed, instead of rent, to render " one-half part of all the grain of every kind, and of all hemp, flax, potatoes, apples, fruit, and other produce of whatever kind that should be planted, raised, sown or produced, on or out of the demised premises, within and during the terms,", the landlord cannot, perhaps, distrain at all; he cannot, certainly, distrain for a sum of money, although he and the tenant may afterwards have settled their accounts, and agreed that the half of the produce of the land should be fixed in money, for which the tenant gave his note, which was not paid. But in another case it was held, that on a demise of a grist mill, when the lessee is to render one-third of the toll, the lessor may distrain for rent.
With respect to the amount of the rent for which a lessor may in different cases be entitled to make a distress, it may be laid down as a general rule, that whatever can properly be considered as a part of the rent may be distrained for, whatever be the particular mode in which it is agreed to be paid. So that where a person entered into possession of certain premises, subject to the approbation of the landlord, which was afterwards obtained, by agreeing to pay in advance, rent from the time be came into possession, it was, in England, determined that the landlord might distrain for the whole sum accrued before and after the agreement. For on whatever day the tenant agrees that the rent shall be due, the law gives the landlord the power of distraining for it at that time.. In New York, it was determined that an agreement that the rent should be paid in advance is a personal covenant on which an action lies, but not distress. Interest due on rent cannot, in general, be distrained for but may be recovered from the tenant by action, unless under particular circumstances.
Of the persons entitled to make a distress. 1. When the landlord is sole owner of the property out of which rent is payable to him, he may, of course, distrain in his own right.
Joint tenants have each of them an estate in every part of the rent; each may, therefore, distrain alone for the whole, although he must afterwards account with his companions for their respective shares of the rent. But one joint tenant cannot avow solely, because the avowry is always upon the right, and the right of the rent is in all of them. They may all join in making the distress, which is the better way.
Tenants in common do not, like joint tenants, hold by one title and by one right, but by different titles, and have several estates. Therefore they should distrain separately, each for his share, unless the rent be of an entire thing, as to render a horse, in which case, the thing being incapable of division, they must join. Each tenant in common is entitled to receive from the lessee, his proportion of the rent; and therefore, when a person holding under two tenants in common, paid the whole rent to one of them, after having received a notice to the contrary from the other, it was held, that the party who gave the notice might afterwards distrain. As tenants in common have no original privity of estate between them, as to their respective shares, one may lease his part of the land to the other, rendering rent, for which a distress may be made, as if the land had been demised to a stranger.
It may be, laid down as a general rule, that for rent due in right of the wife, the husband may distrain alone even if it accrue to her in the character of executrix or administratrix. With respect to the remedies for the recovery of the arrears of a rent accruing in right of his wife, a distinction is made between rent due for land in which the wife has a chattel interest, and rent due in land in which she has an estate of freehold and inheritance. And in some cases, a further distinction must be made between a rent accruing before and rent accruing after the coverture.
A tenant by the curtesy, has an estate of freehold in the lands of his wife, and in contemplation of law, a reversion on all land of the wife leased for years or lives, and may distrain at common law for all rents reserved thereon.
A woman may be endowed of rent as well as of land; if a husband, therefore, tenant in fee, make a lease for years, reserving rent, and die, his widow shall be endowed of one-third part of the reversion by metes and bounds, together with a third part of the rent. The rent in this base is apportioned by the act of law, and therefore if a widow be endowed of a third part of a rent in fee, she may distrain for a third part thereof, and the heir shall distrain for the other part of the rent.
A tenant for his own life or that of another, has an estate of freehold, and if he make a lease for years, reserving rent, he is entitled to distrain upon the lessee. It may here be proper to remark, that at common law, if a tenant for life made a lease for years, if be should so long live, at a certain rent, payable quarterly, and died before the quarter day, the tenant was discharged of that quarter's rent by the act of God. But the 11 Geo. II., gives an action to the executors or administrators of such tenant for life.
By the statute 32 Henry VIII. 'the personal representatives of tenants in fee, tail, or for life, of rent-service, rent-charge, and rents-seek, and fee farms, may distrain for, arrears upon the land charged with the payment, so long as the lands continue in seisin or possession of the tenant in demesne, who ought to have paid the rent or fee farm, or some person claiming under him by purchase, gift or descent. By the words of the statute, the distress must be made on the lands while in the possession of the 'tenant in demesne,' or some person claiming under him, by purchase, gift or descent; and therefore it extends to the possession of those persons only who claim under the tenant, and the statute does not comprise the tenant in dower or by the curtesy, for they come in, not under the party, but by act of law.
The heir entitled to the reversion may distrain for rent in arrear which becomes due after the ancestor's death; the rent does not become due till the last minute of the natural day, and if the ancestor die between sunset and midnight, the heir, and not the executor, shall have the rent. And if rent be payable at either of two periods, at the choice of the lessee, and the lessor die between them, the rent being unpaid, it will go to the heir.
Devisees, like heirs, may distrain in respect of their reversionary estate; for by a devise of the reversion the rent will pass with its incidents.
Trustees who have vested in them legal estates, as trustees of a married woman, or assignees of an insolvent, may of course distrain in respect of their legal estates, in the same manner as if they were beneficially interested therein.
Guardians may make leases of their wards' lands in their own names, which will be good during the minority of the ward and, consequently, in respect of such leases, they possess the same power of distress as other persons granting leases in their own rights.
Corporations aggregate should generally make and accept leases or other conveyances of lands or rent, under their common seal. But if a lease be made by an agent of the corporation, not under their common seal, although it may be invalid as a lease, yet if the tenant hold under it, and pay rent to the bailiff or agent of the corporation, that is sufficient to constitute a tenancy at least from year to year, and to entitle the corporation to distrain for rent.
Of the things which may or may not be distrained. Goods found upon the premises demised to a tenant are generally liable to be distrained by a landlord for rent, whether such goods in fact belong to the tenant or other persons. Thus it has been held that a gentleman's chariot, which stood in a coach-house belonging to a common livery stable keeper, was distrainable by the landlord for the rent due him by the livery stable keeper for the coach-house. So if cattle are put on the tenant's land by consent of the owners of the beasts, they are distrainable by the landlord immediately after for rent in arrear. But goods are sometimes privileged from distress, either absolutely or conditionally. Those of the first class are privileged: 1. In respect of the owner of 2. Because no one can have property in them. 3. Because they cannot be restored to the owner in the same plight as when taken. 4. Because they are fixed to the freehold. 5. Because it is against the policy of law that they should be distrained. 6. Because they are in the custody of the law. 7. Because they are protected by some special act of the legislature.
The goods of a person who has some interest, in the land jointly with the distrainer, as those of a joint tenant, although found upon the land, cannot be distrained. The goods of executors and administrators, or of the assignee of an insolvent regularly discharged according to law, cannot, in Pennsylvania, be distrained for more than one year's rent. The goods of a former tenant, rightfully on the land, cannot be distrained for another's rent. For example, a tenant at will, if quitting upon notice from his landlord, is entitled to the emblements or growing crops; and therefore even after they are reaped, if they remain on the land for the purpose of hushandry, they cannot be distrained for rent due by the second tenant. And they are equally protected in the hands of a vendee. They cannot be distrained, although the purchaser allow them to remain uncut an unreasonable time after the are ripe.
As every thing which is distrained is presumed to be the property of the tenant, it will follow that things wherein no man can have an absolute and valuable property, e.g., cats, dogs, rabbits, and all animals ferae naturae, cannot be distrained. Yet, if deer which are of a wild nature, are kept in a private enclosure for the purpose of sale or profit, this so far changes their nature by reducing them to a kind of stock or merchandise, that they may be distrained for rent.
Such things as cannot be restored to the owner in the same plight as when they were taken, e.g., milk, fruit, and the like, cannot be distrained.
Things affixed or annexed to the freehold, e.g., furnaces, windows, doors, and the like, cannot be distrained, because they are not personal chattels, but belong to the realty. And this rule extends to such things as are essentially a part of the freehold, although for a time removed therefrom, as a millstone removed to be picked; for this is matter of necessity, and it still remains in contemplation of law, a part of the freehold. For the same reason an anvil fixed in a smith's shop cannot be distrained.
Goods are privileged in cases where the proprietor is either compelled, from necessity to place his goods upon the land, or where be does so for commercial purposes. In the first case, the goods are exempt, because the owner has no option; hence the goods of a traveller in an inn are exempt from distress. In the other, the interests of the community require that commerce should be encouraged, and adventurers will not engage in speculations if the property embarked is to be made liable for the payment of debts they never contracted. Hence goods landed at a wharf or deposited in a warehouse on storage, cannot be distrained. Valuable things in the way of trade are not liable to distress; e.g., a horse standing in a smith's shop to be shod, or in a common inn; or cloth at a tailor's house to be made into a coat; or corn sent to a mill to be ground, for these are privileged and protected for the benefit of trade. On the same principle it has been decided, that the goods of a boarder are not liable to be distrained for rent due by the keeper of a boarding house unless used by the tenant with the boarder's consent, and without that of the landlord.
Goods taken in execution cannot be distrained. The law in some states gives the landlord the right to claim payment out of the proceeds of an execution for rent, not exceeding one year, and he is entitled to payment up to the day of seizure, though it be in the middle of a quarter but he is not entitled to the day of sale. The usual practice is, to give notice to the, sheriff that there is a certain sum due to the landlord as arrears of rent; which notice ought to be given to the sheriff, or person who takes the goods in execution upon the premises for the sheriff is, not bound to find out whether rent is due, nor is he liable to an action, unless there has been a demand of rent before the removal. This notice can be given by the immediate landlord only a ground landlord is not entitled to his rent out of the goods of the under tenant taken in execution. And where there are two executions, the landlord is not entitled to a year's rent on each. Goods distrained and replevied may be distrained by another landlord for subsequent rent.
By some special acts of the legislature it is provided that tools of a man's trade, some designated household furniture, school books, and the like, shall be exempted from distress, execution, or sale.
- Secondly. Besides the above mentioned goods and chattels, which are absolutely privileged from distress, there are others which are conditionally so, but which may be distrained under certain circumstances. These are: 1. Beasts of the plough, which are exempt if there be a sufficient distress besides on the land whence the rent issues. 2. Implements of trade; e.g., a loom in actual use; and there is a sufficient distress besides. 3. Other things in actual use; e.g., a horse whereon a person is riding, an axe in the hands of. a person cutting wood, and the like.
The time when a distress may be made. 1. The distress cannot be made till the rent is due by the terms of the lease; as rent is not due until the last minute of the natural day on which it is reserved, it follows that a distress for rent cannot be made on that day. A previous demand is not generally necessary, although there be a clause in the lease that the lessor may distrain for rent, being lawfully demanded the making of the distress being a demand though it is advisable to make such a demand. But where a lease provides for a special demand; as, if the clause were that if the rent should happen to be behind it should be demanded at a particular place not on the land; or be demanded of the person of the tenant; then such special demand is necessary to support the distress.
A distress for rent can only be made during the day time.
At common law a distress could not be made after the expiration of the lease. In the city and county of Philadelphia, the landlord may, under certain circumstances, apportion his rent, and distrain before it becomes due.
In what place a distress may be made. The distress may be made upon the land, or off the land. 1. Upon the land. A distress generally follows the rent, and is consequently confined to the land out of which it issues. If two pieces of land, therefore, are let by two separate demises, although both be contained in one lease, a joint distress cannot be made for them, for this would be to make the rent of one issue out of the other. But where lands lying in different counties are let together by one demise, at one entire rent, and it does not appear that the lands are separate from each other, one distress may be made for the whole rent. And, where rent is charged upon land, which is afterwards held by several tenants, the grantee or landlord may distrain for the whole upon the land of any of them; because the whole rent is deemed to issue out of every part of the land. If there be a house on the land, the distress may be made in the house; if the outer door or window be open, a distress may be taken out of it. And if an outer door be open, an inner door may be broken open for the purpose of taking a distress. Barges on a river, attached to the leased premises (a wharf) by ropes, cannot be distrained.
Off the land. By Pennsylvania statute of March 21, 1772, it is enacted that if any tenant for life, years, at will, or otherwise, shall fraudulently or clandestinely convey his goods off the premises to prevent the landlord from distraining the same, such person, or any person by him lawfully authorized, may, within thirty days after such conveyance, seize the same, wherever they shall be found, and dispose of them in such manner as if they had been distrained on the premises. Provided, that the landlord shall not distrain any goods which shall have been previously sold, bona fide, and for a valuable consideration, to one not privy to the fraud. To bring a case within the act, the removal must take place after the rent becomes due, and must be secret, not made in open day, for such removal cannot be said to be clandestine within the meaning of the act. It has however been made a question, whether goods are protected that were fraudulently removed on the night before the rent had become due. The goods of a stranger cannot be pursued; they can be distrained only while they are, on the premises.
Of the manner of making a distress. A distress for rent may be made either by the person to whom it is due, or by a constable, or bailiff, or other officer properly authorized by him.
If the distress be made by a constable, it is necessary that he should be properly authorized to make it; for which purpose the landlord should give him a written authority, or; as it is usually called, a warrant of distress; but a subsequent assent and recognition given by the party for whose use the distress has been made, is sufficient.
When the constable is thus provided with the requisite authority to make a distress, he, may distrain by seizing the tenant's goods, or some of them in the name of the whole, and declaring that he takes them as a distress for the sum expressed in the warrant to be due by the tenant to the landlord, and that he takes them by virtue of the said warrant; which warrant he ought, if required, to show.
When making the distress it ought to be made for the whole rent; but if goods cannot be found at the time, sufficient to satisfy the rent, or the party mistake the value of the thing distrained, he may make a second distress.
As soon as a distress is made, an inventory of the goods distrained should be made, and a copy of it delivered to the tenant, together with a notice of taking such distress, with the cause for taking the same. This notice of taking a distress is not required by the statute to be in writing; and, therefore, parol or verbal notice may be given either to the tenant on the premises, or to the owner of the goods distrained. And although notice is directed by the act to specify the cause of taking, it is not material whether it accurately state the period of the rent's becoming due or even whether the true cause of taking the goods be expressed therein. If the notice be not personally given, it should be left in writing at the tenant's house, or according to the directions of the act, at the mansion-house or other most notorious place on the premises charged with the rent distrained for.
The distrainor may leave or impound the distress on the premises for the five days mentioned in the act, but becomes a trespasser after that time. As in many cases it is desirable for the sake of the tenant that the goods should not be sold as soon as the law permits, it is usual for him to sign an agreement or consent to their remaining on the premises for a longer time, in the custody of the distrainor, or of a person by him appointed for that purpose. While in his possession, the distrainor cannot use or work cattle distrained, unless it be for the owner's benefit, e.g., to milk a cow, or the like.
Before the goods are sold they must be appraised by two reputable free-holders, who shall take an oath or affirmation to be administered by the sheriff, under-sheriff or coroner, in the words mentioned in the act.
The next requisite is to give six days public notice of the time and place of sale of the things distrained; after which, if they have not been replevied, they may be sold by the proper officer, who may apply the proceeds to the payment and satisfaction of the rent, and the expenses of the distress, appraisement and sale. The over-plus, if any, is to be paid to the tenant.
When a distress will be a waiver of a forfeiture of the lease. The right of distress, it seems, does not exist in the New England states, nor in Alabama, Mississippi, North Carolina, nor Ohio; and in Kentucky, the right is limited to a distress for a pecuniary rent.