Esterly Machine Co. v. Spencer

Opinion by Mb,. Justice Williams, The remedy by distraint for rent in arrears rests, in this state, upon the act of March 21, 1772. The provisions of this statute authorize the seizure of the goods of the tenant upon the premises, and the pursuit and seizure of them off the premises, if they have been removed clandestinely by the tenant; and they furnish a code of procedure to be followed by the landlord in order to bring the articles distrained to sale. They prescribe also the method by which the tenant, or owner of the goods seized, may prevent the sale, and secure a decision of the questions on which the right to distrain depends; such as the existence of a tenancy, the reservation of rent, the ownership of the goods, and the amount of the arrears. As the proceeding is statutory, the directions of the statute must be followed or its protection will be lost. If the seizure is irregular, it is a trespass. If the seizure is regular, but the subsequent steps are not in accordance with the statute, the landlord becomes a trespasser ab initio by his departure from the directions of the law under which he must justify, and may be sued in the same manner as any other trespasser. Thus, if the landlord, after a lawful seizure of goods on the premises, fails to procure an appraisement and to advertise the goods for sale, he becomes thereby a trespasser: Brisben v. Wilson, 60 Pa. 452. If the tenant has removed his goods clandestinely, the landlord may, within thirty days, pursue and seize them, but if, in the exercise of this right, he enters a house to make a search in which the goods are not found, he is a trespasser, and liable as [470] such: Hobbs v. Geiss, 13 S. &. R. 417. But if the landlord keeps within the path which the law prescribes, he is not a trespasser. If he includes in his distraint goods claimed by others, as bona fide purchasers, or as owners, and they wish to assert their title to such goods, their remedy is also prescribed by the statute. The goods were found in the possession of the tenant, with nothing to give notice of the fact that they were not his. • They were, prima facie, liable to seizure for the rent in arrears. The owners come forward to make claim. The burden of proof is on them, and they must proceed in the manner directed, to make their title good against the landlord. This they are to do by an action of replevin: Caldcleugh v. Hollingsworth, 8 W. & S. 302. The act of 1772 makes this the method for the tenant or owner to pursue wherever he would contest the landlord’s right to sell the goods seized by him. The application of these principles to the case now.before us is easy.Spencer was the landlord. Harbert was the tenant, and in arrears for rent. He was a dealer in agricultural implements, and when the distraint was made, among other things seized was a pile of detached pieces of iron, comprising the unassorted castings used in making harvesting machines. The pile was seized and sold as a quantity of old iron. After seizure the agent of the plaintiff company appeared and claimed the iron as the property of his principal, the plaintiffs, and alleged that, the articles were left for sale on commission with Harbert. The landlord then asked the agent to bring his action of replevin, and postponed the proceedings to afford him an opportunity. He decided not to do so, and gave notice of his decision to the landlord, who then proceeded and made sale regularly under his warrant. After the sale the plaintiffs brought this action of trespass to recover the value of the iron so sold. It is not alleged, that the landlord was guilty of' any sin of omission or commission against the act of 1772, by which he .was turned into a trespasser, but the authority of Caldcleugh v. Hollingsworth is denied, and the position assumed that the di-* rection of the act is without effect. The tenant, or owner, may bring an action of replevin if he pleases. If he does not please to do so he may select-such other form of action as suits him best. This is the effect,of the plaintiff’s contention. It [471] disregards the plain provisions of the act of 1772 and the decision of this court in Caldcleugh v. Hollingsworth. This ren:< ders the consideration of the other questions raised unneces-i sary. f,- - The judgment is reversed.