Ball v. Penn

Opinion by Beebes, J., The question in this case is whether the personal property of a married woman which has been removed from demised premises can be followed by the landlord of her husband and a distress levied upon it for rent in arrear. No authority is needed for the general proposition that the exercise of the right of distress for rent in arrear must be had whilst the goods are upon the demised premises, and that all goods upon the premises, whether belonging to, the tenant or other persons, with some exceptions designed to aid in the encouragement of trade not necessary to mention here, are subject to such distress. But the right to pursue the- goods after their removal from the premises must be found in the terms of the Act of March 21, 1772, 1 Sm. L. 370. If this act does not give the right it does not exist: Grant & McLane’s Appeal, 44 Pa. 477; Owens v. Shovlin, 116 Pa. 371. In Grace v. Shively, 12 S. & R. 217, it was said that this act of assembly is very nearly a verbatim copy of the statute of II Geo. 2, ch. 19, sec. 1. In England it has been decided that their act does not empower the landlord to levy a distress upon the goods of a stranger after they have been removed from the premises: Thornton v. Adams, 5 Maule & Selwyn, 38; Postman v. Harrell, 6 Carrington & Payne, 225; and long before these decisions it had been decided in this state that our act did not allow a stranger’s goods to be levied upon after they had beeii removed from the premises: Adams v. LaComb, 1 Dall. 463. Can the wife be said to be a stranger within the meaning of those decisions? We think so. The words of the act apply only to a lessee and his goods. There can be no uncertainty as to who was the lessee in this case. The lease itself shows that it was the husband. The fact -that he had a wife can in no sense be said to have made her also a [547] lessee, unless we are willing to go to the length of deciding that the wife is liable upon the contract of her husband. It is true that some of her goods may become liable to pay a debt for rent due by her husband, and so may the goods of a stranger, but as the fact that a stranger’s goods may, under certain circumstances, become liable for the rent of a tenant does not make him a tenant within the meaning of the act, we can see no reason why the liability of the wife’s goods, under the same circumstances, should make her a tenant. The remedy afforded by this act of assembly is a drastic one and not to be extended beyond its words. They clearly relate only to the lessee and his goods. They cannot be extended to apply to the goods of a wife. The case of Blanche v. Bradford, 38 Pa. 334, cannot be held to decide that the wife, under circumstances such as are in this case, is a tenant. Whilst there is language in the opinion in that case broad enough to convey that meaning it must be read in connection with the facts of the case. The only point decided there was that a wife’s goods, whilst upon the demised premises, are liable to levy and distress for rent in arrear. It was shown that the goods even of a stranger whilst on the premises would be liable and that the wife was no exception to the rule, and then it was said in the course of the opinion, as perhaps a justification for the liability of the wife’s goods for the husband’s debt, that she was no stranger to the lease, but one of the family for whom it was obtained and therefore one of the tenants under it. We take this to mean nothing more than that she received the benefit of the lease. The fact that her goods were upon the premises when the distress was levied made them liable. The appellant insists, apparently for the first time in this court, that the evidence did not show such a degree of proof of the ownership of the property by the plaintiff as is required where a wife’s goods are levied upon by the husband’s creditors. Under the pleadings in this case we do not think this question can arise. There can be no doubt of the rule that in an action of replevin the plea of non cepit admits ownership of the goods in the plaintiff. The same must be true in the case of an avowry such as was in this case. The defendant admitted the taking of the goods of the plaintiff and claimed he was justified in doing so because there was rent in arre&r. “ Where the de [548] fendant wishes to put the right of property in issue, it is done by a plea of property, which throws the burthen of proof upon the plaintiff in replevin to prove property in himself: ” Mackinley v. McGregor, 3 Wharton, 369. It has been held that an avowry admits the ownership of the goods in the plaintiff in the manner in which it is laid in the declaration: Buller’s Nisi Prius, p. 53, citing Berne v. Mattaire, Cases temp. Hardwicke, p. 119. As the defendant failed to make the ownership of the goods' by the plaintiff a question at issue by the pleadings we must hold it to have been admitted by him as laid in the declaration. All the assignments of error are overruled. Judgment affirmed.