Moulton v. Norton

By the Court, Pratt, P. J. The contract under which the plaintiff below entered into the possession of the premises in — 292 — question, was clearly a contract to purchase, and not a demise: There is no part of it which assumes to demise, or reserve rent. It is somewhat informal and unfinished, but as far as we are able to make any thing out of it, it has all the essential ingredients of a contract to purchase. It assumes to sell the premises for a given consideration, a time for the payment of a portion of such consideration is specified, and although no time is mentioned for the payment of the residue, that is evidently an unintentional omission. The only question that can arise in relation to the construction of the contract, grows out of that part of it which gives Norton the right to quit the premises at the end of the year, upon the payment of three hundred and seventy-five dollars, specified in the contract as the first payment. That, we think, only amounts to a refusal to Norton, for one year, upon a forfeiture of the first payment; with a stipulation on his part, to give notice by the middle of July, if he should elect not to keep the premises. There is no stipulation, in case Norton should elect not to keep the premises, that the contract shall be deemed a demise, or that the three hundred and seventy-five dollars shall be deemed rent reserved: The word rent is only once used in the contract, and then in a connection which, at most, leaves it very doubtful what was really intended by it. It would be giving that word altogether too much potency to hold that, notwithstanding the careless manner of using the term, it has the effect to entirely change the purport of the contract. It was insisted, upon the argument, that at all events, after the middle of July, and after Norton elected not to keep the premises, he held as tenant, and not as purchaser.. If that were so, it xyould not alter the case. It is quite clear that up to that time he held as purchaser : and it was during that time, that the two hundred dollars, the sum for which the warrant of distress was issued, became due. That sum, therefore, accrued as purchase money, and not as rent; and Carter was bound by the agreement to take Norton’s note for the same. How the mere change of the relation on the fifteenth of July from vendor and purchaser to that of landlord and tenant, should — 293 — óonvert a debt due on the first of June previously, into rent reserved, with the right to collect the samé by distress and sale, is more than I can comprehend. It would, in my opinion, require some express stipulation between the parties to convert a contract of that character into a demise ah initio, with all the rights growing out of that relation. Even where a party enters into the possession of land under an agreement to lease at a given rent, it has been held that the landlord cannot distrain for non-payment; that there must be an actual demise. (Hogan v. Johnson, 2 Taunton, 148. Dunk v. Hunter, 5 B. & A. 322.) I think the affidavit is also defective. It sets out the contract, and an election to lease, but it does not set out any specific demise or agreement by which rent was reserved. It purports to give the legal effect of the contract, and not to set. it out, in hcec verba. It should therefore, if it is claimed that the contract amounted to a demise, have alleged that fact. (5 Hill, 562.) We are therefore of opinion that the proceedings were neither a justification to the party nor the officer. {Sackett v. Barnum, 22 Wend. 605.) The question in relation to the lialility of Moulton is not free from doubt. At common law, the landlord might distrain in person, or issue his warrant to any private person. By the laws of 1813, (1 R. L. 434, § 5,) after five days’ notice of the distress, if the goods were not replevied the person distraining with the sheriff or under sheriff of the county, or with the constable or other officer of the town or place where such distress should be taken, (who were thereby required to be aiding and assisting therein,) should cause the goods and chattels to be appraised. The officer Was to summon and swear the appraisers, and the over-plus, after sale, was to be left in the officer’s hands. By the revised statutes, (2 R. S. 500, § 3,) “ every distress must be made by the sheriff, or one of his deputies, or by a constable or marshal of the city or town, who shall conduct the proceedings throughout.” This makes it obligatory upon the party to call in the aid of the officer at the very commencement of the pro — 294 — ceedings; and the reason for the change, given by the revisers, is that “ by the act of 1813, these officers were called in at the appraisement, and that there seemed to be stronger reasons to require the protection of a disinterested officer, at the commencement of what is usually a severe proceeding.” (Revisers’ Notes, 3 R. S. 762, 2d ed.) The question then arises under this statute, whether the officer, in making the distress, acts in the capacity of a public officer or as a private bailiff of the landlord ; whether the legislature, in making it necessary that the distress should be made by certain specified public officers, meant to change the entire responsibility growing out of these proceedings, and with it,- of course, the whole form of pleadings in actions to recover the property ; or to simply narrow the circle of selection of the agents to be employed by the landlord. In Webber v. Shearman, (6 Hill, 29,) this question was decided in the supreme court. In that case, the question arose upon the pleadings, but the point was necessarily involved in the decision. Justice Co wen, in giving the opinion of the court, held that the officer acted merely as bailiff of the landlord, and that the landlord was in effect the distrainor. This decision seems to conflict with the opinion of Justice Bronson in the case of Van Rensselaer v. Quackenbush, (17 Wend. 35.) It was there said that the landlord could not maintain an action against a third person who should, after distress, convert the goods ; that the distress could only be made by a public officer; and that after distress the goods, like those taken under execution, were in the custody of the law, and the officer alone could have an action for their conversion. This decision was not necessary in the case, and was probably made without a Very strict examination of the provisions of that statute. We think, therefore, that the construction of that statute given in the case of Webber v. Shearman is the correct one, As it was observed in that case, at common law the landlord distrained in person, or by any agent he might see fit to employ, although in practice it was usual to employ an officer who was familar with that kind of business, as it is now to employ officers to make sales under personal mortgages. The — 295 — revised laws which provided for calling in the aid of an officer at the appraisal, treats the landlord as the party conducting the proceedings, and the officer as simply aiding and assisting him. The revised statutes change the law in regard to the time of .procuring the aid of an officer, and make it necessary to employ the officer at the commencement of the proceedings ; but otherwise the landlord is spoken of as the responsible party. Section first gives the landlord the right to distrain. By section 11, the landlord, in certain cases, is to provide a place for storing the goods distrained. By section 12, he is authorized to distrain cattle or stock feeding upon any common appurtenant; and section 28 provides that where the rent is justly due any irregularity by the party or his agent, distraining, shall not render the distress unlawful. As the proceedings are to be conducted throughout by the officer, any irregularity must be the immediate act of such officer. Yet in this section it is treated as the act of the party himself, or his agent. The landlord, therefore, throughout the statute in question, is spoken of and treated as the responsible and acting party, and the officer as simply aiding and assisting him. Again; it is provided that the warrant of distress shall be served by the sheriff¡ or one of his deputies. If the warrant is to be deemed process, in the ordinary sense of the term, and issued to the sheriff in his official character, it would not have been necessary to mention his deputies as persons who might serve it. They would be entitled to serve it by virtue of their office. Again ; if it is process, the officer would be protected whenever the warrant was regular on its face, and accompanied ;by a regular affidavit. Yet the late supreme court, in the case of Webber v. Shearman, decided, and we think correctly, that the officer, in a suit against him, would be compelled to go back of his warrant and show an actual demise, and rent due; that in pleading to a declaration id replevin he should avow as formerly, in the name of the landlord, and make cognizance as his bailiff If, therefore, we are right in this view of the case, the officer acts in such cases merely as bailiff of the landlord, and not as a .public officer in the execution of legal process, and — 296 — the sheriff therefore is not responsible for the acts of his deputies in serving distress warrants. A sheriff is pot answerable for any default of his deputies, unless it be a default in executing the power lawfully derived from the authority of the sheriff, under which the deputy acts. When he undertakes any duties not resulting from the dudes of his offipe the sheriff is not responsible. (Allen on Sheriffs, 86, and cases cited. 4 Mass. Rep. 60. 7 Id. 123.) He ought not to be held responsible for the acts of the deputy, unless his redress against him and his sureties be clear and unquestionable. (7 Cowen, 746.) It follows, therefore, that the sheriff in this case ought not to have beep made a party. There is another point, which was not discussed upon the argument, but which I am inclined to think is equally fatal to the case of the defendant in error. Although the sheriff is liable for the acts of his deputies in certain cases, and the party aggrieved has his action against the sheriff or his deputy at his election, yet I apprehend he is not entitled to maintain a joint action against them. This point has not, to my knowledge, been decided in this state; but in the case of Phelps v. Campbell, (1 Pick. 62,) it was expressly decided that the sheriff and his deputy, in such cases, were not jointly liable. And the reasons given for the decision in that case, I think, are founded on correct legal principles. (See Cowen & Hill’s Notes, 823; 13 Mass. Rep. 49; Allen on Sheriffs, 88.) The decision of the court below being wrong as to the defendant, Moulton and the judgment being entire, it must be reversed as to all the defendants. (5 Hill, 441. 1 Denio, 527.) Judgment reversed.