Owens v. Shovlin

Opinion, Mr. Justice Green : There is no doubt that when Owens removed from the premises demised to him by Shovlin before the expiration of the term, the rent for the remainder of the term became immediately due and payable. This was so by force of the express provision of the lease. Not only did the remaining rent for the term become due and payable, but it was also “ collectible by distress or otherwise,” because the lease so declared. That such a contract is within the power of the parties to make was fully held in Grant and McLane’s Appeal, 44 Penn. St. 477, and Goodwin v. Sharkey, 80 Penn. St. 149. But the question arises what kind of a distress was authorized by this language of the lease. The learned court below thought, and so held, that it authorized any kind of distress which the law permitted. The court conceded, however, that if it were the case of an ordinary lease the remedy by distress could only be exercised upon the premises demised, unless it was shown that the removal of the goods was fraudulent or clandestine. He held, nevertheless, that because of the pro-' vision that in case of the tenant’s removal from the premises the rent should become immediately due and payable, and should be collectible by distress or otherwise, a right of distress away from the demised premises arose without showing that the removal of the goods of the tenant was fraudulent or clandestine. We are unable to agree to this conclusion. The right to follow the goods off of the premises exists only by force of the statute of March 21,1772, 1 Sm. L. 871, and is given when the tenant “ shall fraudulently or clandestinely convey or carry off from such demised premises his goods and chattels with intent to prevent the landlord or lessor from distraining the same for arrears of such rent so reserved as aforesaid.” In order then that this particular privilege of [376] following the goods off the premises may be exercised, it must appear that the prescribed conditions exist, to wit: a fraudulent or clandestine removal of the tenant’s goods. How does that appear in this case ? As a matter of fact it does not appear at all, because the court below took away from the jury the power of deciding the question, by a binding instruction to find for the landlord upon the mere words of the lease. If now it appeared in the lease that any removal of the goods should be treated as a fraudulent or clandestine removal the requirements of the statute would be complied with. But there is no such provision in the lease and hence the fundamental condition upon which alone the right in question may be exercised is absent. The right to proceed presently by distress is conferred by the lease, but this right can only be enforced by distraint on the premises. An exception in this respect exists if the goods have been removed fraudulently or clandestinely from the demised premises; but unless one or other of these facts has transpired, the exceptional right does not arise. In the case of Grant and McLane’s Appeal, supra, the provisions of the lease were substantially identical with, those of the present lease both as to the maturing of the rent and the right of distress. The tenant removed from the premises and also removed his goods before the expiration of the term. The goods were removed in the daytime and the auditor distributing the proceeds held they were not removed clandestinely but were removed fraudulently. But this court held that fraud did not necessarily follow from the mere removal, and that the right of distress did not exist by mere force of the lease which gave the right of distress generally, but must be founded upon an actual removal either fraudulently or clandestinely. That case rules the present and requires a reversal of the judgment in order that the cause may go back for trial upon the question whether Owens removed his goods fraudulently or clandestinely within the meaning of the act of 1772. Judgment reversed and new venire awarded. Me. Chief Justice Meecue and Me. Justice Gordon dissent.