Washington v. Williamson

Weisel, J., after stating the facts of the case, (ante pp. 245 and 246,) delivered the opinion of the Court, as follows : The points in the appellant’s brief constituted his causes below against the passage of the order appealed from. . In this case the goods levied on were not removed from, but sold upon the premises, and the remedy by motion for the Sheriff to pay the rent due out of the moneys in his hands, was an appropriate one, and fully sanctioned by all the authorities. It was not necessary that he should have removed the goods from the premises, to entitle the landlord to his rent upon a motion of this kind; though he could not have maintained an action on the case against the Sheriff, on the Statute of 8 Anne, without having removed the goods. White vs. Binstead, 76 Eng. C. L. Rep., 1001. The Sheriff must have notice of the rent; and of this we think he had sufficient notice. The one accompanying the distress warrant informed him, with sufficient certainty, of the amount due, the time when due, and the person to whom duo and to be paid. The Statute of Anne prescribes no form of notice, ifor does the law of Maryland. This, however, does require, that whenever any landlord shall give notice of rent due, there shall be appended to such notice an affidavit of the amount of his rent claimed to be due. 1 Code, Art. 53, sec. 21. The notice in this case was supported by the requisite affidavit. Every thing in relation to this branch of the proceeding appears sufficiently plain and unambiguous. Colyer vs. Speer, 2 Brod. Bing., 67. There is no proof, that we can perceive, that Mrs. Wilkes, or her agent, waived her right, by consent actual or implied, to the rent due. She expressly notified the Sheriff that she would expect it to be paid out of the proceeds of the sale of goods seized under the executions; and it was at the Sheriff’s option to remove the goods or not from the premises before the sale. The goods being in custodia legis in either case, but subject to the statutory lien for the rent, the Sheriff became liable for the rent, either upon the stat [252] ute by action, or upon motion, while the funds remained in his hands. (Decided June 22nd, 1865.) Nor do we think that the claim for rent in this case was waived or released by the proceedings under the distress warrant. That was levied upon property which, it appears from the • proof upon which the motion was heard below, was privileged by law from distress for rent. It was a proceeding at the suggestion of the Sheriff himself, and was no sooner conceived than abandoned; for the Sheriff, although he states he had levied it, also adds that the agent, James K. Wilkes, refused to have it so levied, and countermanded it the same day it was placed in the Sheriff’s hands. The landlord, , under this statute, is entitled only to so much rent as accrued or fell due before the levying of the execution, provided the same do not exceed one year’s rent. Smith vs. Russell, 3 Taunt., 400. Palgrave vs. Windham, 1 Stra., 91. Gwilliam vs. Barker, 1 Price, 274. Trappan vs. Morie, 18 Johns., 1. 1 M. & S., 245. Comyn on Land. & Ten., 392. The levy of the first execution was made on the 8th of June, and that of the second on the 18th day of June. At that time only five months’ rent was due to the 1st of June. The allowance of the additional month, to July 1, by the order appealed from, was therefore erroneous. But the present appellant would not be benefited by a reversal of the judgment on this account, and for that reason could not ask it; the first execution creditor would be entitled to the difference between the rent due, $125, and the net amount in'the Sheriff’s hands, $134.13, and he has not appealed. The Court, therefore, under these circumstances, will not reverse the judgment below. Judgment affirmed.