Snyder v. Kunkleman

The opinion of the Court Was delivered by Rodgers, J. In a manuscript case, in the Common Pleas of Philadelphia, it was decided, that notwithstanding a landlord has obtained judgment before a justice, for a sum less than twenty dollars, and special bail has been entered for a stay of execution, he may legally distrain upon the tenant for the same rent for which judgment was entered. So a recovery on a covenant for the payment of rent, is not, without actual satisfaction, an extinguishment of the rent; and the lessor may, notwithstanding such recovery, distrain for the rent in arrear. Chipman v. Martin, 13 John. Rep. 240. The judgment can only be considered as additional security, and not as a satisfaction for the rent; nor does it alter the case, that the plaintiff has issued a.Ji. fa. or a ca. sa.; still the landlord has not received satisfaction. The rent, notwithstanding, remains due, and in arrear. And in Banthan v. Smith, 2 Bin. 153, it is ruled, that a judgment without satisfaction works no extinguishment of the rent. The landlord has concurrent remedies which he has a right to pursue, until he obtains actual satisfaction for the rent in arrear. The note which Kunkleman gave was partly for rent, and partly for grain; and it behooves Snyder to shew, on the trial, what part was for rent, and what for grain sold to Kunkleman. For the amount of rent due, he has a right to satisfaction to the extent of the money raised by the sale of the grain. The grain was on the demised premises, and as such, was subject to distress; for although the lien had expired, yet, inasmuch as it had not been removed from the premises, it is liable for the rent. The right to distrain is secured by the fourteenth section of the actof the 21st March, 1772. The statute of 13 Elizabeth, avoids all executions issued or kept on foot with intent to delay, hinder, and defraud creditors*. It is difficult to doubt, that here there was management between certain creditors and the sheriff, to favour Kunkleman, at the expense of Snyder. The conduct of the defendant and the other parties to this transaction cannot be explained on any other supposition. The judgments are entered, and exeentions issued, in the absence of the creditors, with an avowed intention of defeating an execution which Snyder was about to issue. Immediately after, we find the plaintiffs in the executions, (as the sheriff supposed they would,) giving bond to the sheriff for the delivery of the goods on demand, [491] with the manifest intent, that the defendant should retain the possession of the goods; and this, notwithstanding the urgent requests of Snyder to the sheriff, that he would proceed to sell. The parties afterwards agree that the sheriff shall proceed forthwith and sell. Notwithstanding this, the sheriff, at the instance at least of some of the creditors, refuses to sell, although repeatedly urged by parol and in writing by Snyder. He is insultingly told, that they do not care what he said, that, he had no right to the property, that the sheriff was safe, and this he seems to have thought a good reason for-a shameful violation of duty. The only pretence for this is, that they supposed the grain would sell better about harvest. But this was a shallow pretext, as is evident from the fact, that the grain constituted but a small portion of the property under execution. Whenever one creditor chooses to interfere with the action of another creditor’s writ, he does so at his peril. What right have those creditors to interpose between Snyder and the sheriff, in fraud of their own agreement. The sheriff says he acted under their direction. If they had ordered him to sell, he would have done so. However improper the conduct of the sheriff, yet the creditors are equally in fault. This presents the case not only of a violation of the statute of Elizabeth, but of their own agreement, and with what motive, except to favour Kunkleman and delay Snyder, it is difficult to imagine. The testimony leaves it in doubt, whether all the creditors were engaged in the combination against Snyder. This is a matter which must be submitted to the jury. We are of the opinion, that such of the creditors, who were consenting to the conduct of the sheriff in delaying the sale, are postponed. We do not put the case on the ground of actual fraud; it is a fraud in law; and so the jury should have been instructed. Their conduct is irreconcileable with good faith. On the whole case, we are of the opinion,these creditors should be postponed. Judgment reversed and a venire de novo awarded.