Murphy v. Borland

Mr. Justice Paxson delivered the opinion of the court, November 17th 1879. The right of Margaret McClurg to distrain for her dower was settled in a former action of replevin between the same parties : Borland v. Murphy, 4 W. N. C. 472. The doubt expressed in the per curiam opinion was perhaps personal to the writer, and must'not be accepted as interfering in any degree with the stability of that decision. While there are several assignments of error there is really but one question. The distress was for the sum of $625, being the dower for one quarter, chargeable upon this particular property, and was made upon the goods of a tenant of a portion of the premises, who rented from the devisees of Alexander McClurg for $1500 per annum. It was claimed by the plaintiff that Mrs. McClurg was only entitled to distrain upon his goods for the amount of rent he was to pay his landlord. On the other hand the defendant contended that it was immaterial what amount of rent, or whether any rent was due from the plaintiff Borland, to the devisees of Alexander McClurg at the time Mrs. McClurg distrained his goods for her arrears of dower. This is the substance of the defendant’s first point (see 5th assignment), and was answered by the court as follows: “ The effect óf this point is to rule that if Mr. Borland’s rent was $375 a quarter, and the amount due Mrs. McClurg $625 a quarter, that, notwithstanding the agreement on' the part of Mr. Borland to pay $375, he could be levied on every quarter [90] for $625, and be compelled to pay it. That point is refused. I do not understand that to be the rule laid down in the case 1 have already referred to.” The learned judge repeated this ruling in a more emphatic manner in his answer to the seventh point (eighth assignment). This was error. Mrs. McClurg had nothing to do with the renting of the property, and was in no way responsible for any arrangements made in regard thereto. She had the right to distrain for her dower as established, and charged upon this property by the decree of the Court of Common Pleas; and she had the further right to aváil herself of the common-law rule that the goods of a stranger upon the demised premises are liable to be distrained for rent in arrear. That this rule prevails in this state has been frequently decided. I note only the cases conveniently at hand: Adams v. La Comb, 1 Dallas 440 ; Kessler v. McConachy, 1 Rawle 434; Karns v. McKinney, 24 P. F. Smith 387. And the goods of a tenant’s wife, found on the demised premises, are liable to distress for rent in arrear though they are her separate property: Blanche v. Bradford, 2 Wright 344. Borland was a stranger to Mrs. McClurg; his goods were found upon the premises charged with the payment of her dower, and were liable to a distress therefor. We have nothing to do with the hardship of the case, if there be any, which is by no means clear. Borland voluntarily remained upon the premises after the former distress. If he chose to do so and fight the battle of the heirs without being indemnified by them, it furnishes no just ground of complaint now. The evidence referred to in the first and third assignments was improperly received. The terms of Borland’s tenancy did not in any manner interest or affect Mrs. McClurg; and the proceedings on the appointment of a receiver on her application were equally irrelevant. It would have been competent t'o show payment of the particular dower-money embraced in this suit, but that was not attempted. None of the other assignments requires discussion. Judgment reversed, and a venire facias de novo awarded.