Anderson v. Henry

• Decision Date: 26 November 1898
• Citation: 31 S.E. 998,45 W.Va. 319
• Parties: ANDERSON. v. HENRY et al.
• Court: West Virginia Supreme Court

31 S.E. 998

45 W.Va. 319

ANDERSON.

v.HENRY et al.

Supreme Court of Appeals of West Virginia.

Nov. 26, 1898.

Landlord's Lien—Distress Warrant—Justice's Docket—Evidence—Constitutional Law.

1. Section 12, c. 93, Code 1891, gives a lien for one year's stipulated rent, whether accrued or not, upon the tenant's goods carried on the premises over liens created after the commencement of the tenant's term by deed of trust, mortgage, or otherwise, though no distress warrant has been issued for such rent.

2. A distress warrant, not being judicial process, need not be made returnable before a justice or court. If made returnable to the justice, it is good.

3. Where a justice's docket omits to enter a proceeding which should be entered, other proper evidence may be admitted to prove the proceeding.

4. Amendment 14 of the constitution of the United States does not render our statute law allowing distress warrant for rent unconstitutional and void.

(Syllabus by the Court.)

Appeal from circuit court, Mercer county; Saunders, Judge.

Bill by J. M. Anderson against Henry & Linkous to administer assets. Hannah Grin-berg presented a claim. Prom a decree allowing only a part thereof, she appeals. Reversed.

Johnston & Hale, for appellant.

John A. Douglass and A. W. Reynolds, for appellees.

BRANNON, P. A mercantile trading firm in the name of Henry & Linkous, by deed of lease dated April 18, 1894, leased of Hannah Grinberg a tenement in the city of Bluefield for a term of three years, beginning that date, for the sum of $3,600, payable in semiannual installments of $600 in advance, the first payable on the day of its date. On April 26, 1894, Goodman Bros. & Co. sued out an attachment for debt against Henry & Linkous, which was levied upon the stock of goods in the leased tenement. On April 27, 1894, Henry & Linkous made an assignment of said goods for the benefit of creditors. Under an order of court in the attachment case the goods were sold, and the proceeds are to be applied in this suit according to the rights of the parties. On July 23, 1894, Hannah Grin-berg sued out from a justice a distress warrant against Henry & Linkous for the $600 installment of rent payable April 18, 1894, which was levied on said goods while yet on said premises. Afterwards J. M. Anderson, the trustee in said assignment for creditors, brought a suit in the circuit court of Mercer county, in equity, to administer the assets conveyed in said assignment among all parties interested therein; and in this suit a reference to a commissioner was made to convene the creditors of Henry & Linkous, and report their debts and priorities; and Hannah Grinberg presented to the commissioner a claim for $1,200 for one year's rent, and a decree in the case allowed her only $600, and refused it any priority, but ranked it among the general creditors' debts. From this decree she appealed. Thus the questions we have to decide are: How much is Hannah Grinberg entitled to for rent? Is it a lien because rent, and entitled to preference over the general creditors taking under the assignment? I answer that she is entitled, as against these creditors, to $1,200, —one year's rent, —and that she has priority over said trust creditors. As against the tenants themselves, Hannah Grinberg would be entitled to demand, as it accrued, the entire sum of rent stipulated for the whole term; but as against creditors of the lessees obtaining liens after the beginning of the term by deed of trust or otherwise against the goods on the premises, her rights are limited to one year's rent by sections 11, 12, c. 93, Code 1891. Section 11 provides how a distress warrant shall be enforced, saying that it may be levied on goods of the lessee or his assignee on the premises, or removed therefrom not more than 30 days, and provides that liens resting on the goods when taken to the premises shall not defeat a levy of the distress warrant, but only the lessee's interest after paying the prior lien shall be liable to distress, but as to liens created while the goods are on the premises, they shall be liable to distress, but not for more than one year's rent, "whether it shall have accrued before or after the creation of the lien." The office of section 11 is to say what goods may be taken, and to say how the distress shall affect goods under liens prior and subsequent, limiting it, as to liens arising after the commencement of term, not by amount in dollars, but by the time of accrual, and to the amount stipulated to be paid for one year by the lease. So a distress warrant actually sued out could bind only for one year's rent actually accrued as against subsequent liens. More rent may have become payable, but as to subsequent liens it could operate only for a year's rent; but its positive effect is to give a levy for one year's rent against subsequent liens, whether the rent accrued before or after the birth of the liens. The section gives no limit as to the tenant. It may, as to him, be levied for rent for a period longer than a year. This section shows a clear intent to give a landlord preference for one year's rent. Such is the law as to rent actually accrued and in arrear, where a distress warrant is out. But suppose a year's rent has not become due, so that there can be no distress. The term is running, the goods on the premises, and, if uninterrupted, the landlord would get his whole rent for the whole period; and the legislature thought that at least one year's rent should be accorded him, but no more, though the term were longer, as that would give the rent debt too much preference over other debts. Section 11 gives it to him where it has accrued; section 12 gives it to him whether accrued or not, because accruing under a current tenancy. If the goods should remain on the premises, they would, when the rent should be due, be liable for one year's rent under a distress warrant in such case; and if any one under subsequent lien or legal process take the goods from the premises, and frustrate a distress warrant for the rent when due, this section places the landlord where he would be under section 11, giving him right to one year's rent; and that right is manifestly a preference. He must be paid, before removal under deed of trust, all rent in arrear, and secured what has not fallen due, not exceeding in all one year's rent It gives the landlord right of payment and preference out of the goods themselves, and this operates as a lien. It gives right to the landlord to detain the goods on his premises against a removal of trust until paid and secured as prescribed, just like an innkeeper or tailor may detain goods until payment. If removed under legal process, it says that the officer, though he may remove them, shall, out of the goods, pay rent in arrear, and sell enough on credit to pay the balance when due. Why all this is not a lien, I fail to see. It makes no difference whether a distress warrant has been sued out or not, or can be sued out, for want of maturity of the rent. Indeed, the section contemplated that a distress will not be made, if it does not prohibit it, because it allows the property...