Elkman v. Rovner

• Decision Date: 19 February 1943
• Docket Number: 149/17.
• Citation: 30 A.2d 516
• Parties: ELKMAN v. ROVNER et al.
• Court: New Jersey Court of Chancery

30 A.2d 516

ELKMAN

v.ROVNER et al.

149/17.

Court of Chancery of New Jersey.

Feb. 19, 1943.

Suit by Samuel Elkman against A. J. Rovner and others for an injunction restraining named defendant from further interference with removal of store fixtures from premises demised to plaintiff, cancellation of lease, damages as for an unlawful eviction, and adjudication of rights of all parties, wherein named defendant filed a counterclaim seeking permanent injunction against plaintiff and other defendants restraining any interference with sale of fixtures under distress for rent.

Decree advised in favor of counterclaimant to permanently restrain interference with sale and denying relief sought by complainant.

1. At common law a distress and an impounding were separate and distinct steps taken to enforce rent service or payment. The right to distrain arose out of what the English called the ‘right of self-help.’ The right of self-help at common law, however, never included the right of self-satisfaction, and the lord might not sell the chattels impounded; he might not even use them. When he had taken them, they were not in his possession; they were in custodia legis.

2. At common law no precise act or form of words was ever considered essential to a distress, and a legal distress could be made without actual seizure. To make a distress it was sufficient if the landlord or his agent, for rent in arrear, took effectual means to prevent the removal of the chattels from off the demised premises; this the landlord or his agent could accomplish by a declaration at the premises that the chattels might not be removed until the rent debt had been satisfied.

3. At common law a distress having been made, the distrainor was required to take the chattels distrained (then also called the ‘distress') to a public pound and there make them secure. These latter acts constituted the impounding.

4. Upon the distinction between a distress and an impounding depends substantial rights and remedies of the parties.

5. New Jersey has favored distress as a means of collecting rent due and the legislature and the courts have carefully preserved the distinction between a distress and an impounding.

6. No notice to a tenant of a distraint for rent is required to perfect a possessory lien valid at common law, the requirement of notice being simply a prerequisite to the right of sale given by statute.

W. Louis Bossle, of Camden, for complainant.

Walter S. Keown, of Camden, for defendant-counterclaimant A. J. Rovner.

WOODRUFF, Vice Chancellor.

This cause grows out of a dispute between landlord and tenant. Complainant, the tenant, charging technical error in a distress and impounding for rent, prays that his landlord be enjoined from further interference with the removal from the demised premises of seized store fixtures, that his lease be declared void and cancelled, that he be awarded damages as for an unlawful eviction, and that the rights of all parties be adjudicated. Defendant Abraham J. Rovner, one of the owners of the premises demised, joins in the prayer of complainant that the rights of all parties be determined, and by way of counterclaim seeks a permanent injunction against any interference with a sale of the fixtures under the distress.

Both a multiplicity and a circuity of actions seemed inevitable when complainant filed his bill. The tenant, a resident of the State of Pennsylvania, had attempted to dispose of all his property in the leased Camden, New Jersey store by an auction sale. The sale was interrupted and a distress made upon the store fixtures which had then not been offered for sale. Notice was given of the landlords' claim for rent and of the distress, notwithstanding which, complainant's auctioneers requested and accepted bids for the store fixtures. The four successful bidders claimed title to the fixtures, and the auctioneers made claim for services rendered. The tenant refused to recognize the legality of the distraint, and the landlords refused to permit removal of the fixtures. A constable, acting for the landlords, placed a padlock upon the door of the premises and the auctioneers then locked the door with two additional locks.

Co-owners of the store property with Mr. Rovner are Dora Rovner his wife, and Gertrude Handle. Of these three only Mr. Rovner is a party to this suit. The successful bidders at the auction sale of the store fixtures were I. Abramson, Nick Morelli, George Comen and Joseph Davis. Complainant's auctioneers were Jack Caskey and Abel J. Caskey, who trade as Associated Auctioneers. The four bidders and the auctioneers were made parties defendant in both the bill and the counterclaim and counsel for all except George Comen acknowledged service of process. Decrees pro confesso were taken against all of them by complainant and by the counterclaimant. We are, therefore, presently concerned with the controversy between landlord and tenant.

The facts essential to a decision are not in substantial dispute. Prior to February 10, 1942, complainant had occupied 1121 Broadway, Camden, New Jersey, as a tenant from month to month; therein he had conducted a meat and grocery business, and, on that day, he was $200 in arrear for rent. The owners consented to permit him to liquidate this debt in eight monthly installments of $25 cach, such installments to be paid with future rent; a lease was executed; the term fixed was two years from March 10, 1942, rent to be paid monthly in advance to Barney B. Brown, attorney for the landlords-$175 per month for the first eight months and $150 for the remaining sixteen months. The lease recited that it was being made by ‘A. J. Rovner, agent for owners'.

Complainant, in the negotiations for the lease, was represented by his son Harold J. Elkman, a member of the Bar of Philadelphia, Pennsylvania. April 15, 1942, the latter advised Mr. Brown that complainant was seriously ill and wished to dispose of his meat and produce business; on May 2, 1942, the business was discontinued and thereafter the store was closed. On May 7, 1942, Harold J. Elkman informed Mr. Brown that he had engaged the defendant auctioneers to hold an auction sale of his father's stock of merchandise and the store fixtures in the demised premises. The sale was advertised to be held at the store May 19, 1942, at 10:30 A. M. On May 15, 1942, Mr. Brown communicated with Harold J. Elkman and demanded payment of $175 which, under the terms of the lease, had become due May 10, 1942. Mr. Elkman replied that he would meet Mr. Brown at the auction sale and there pay the rent. At the store, on the morning of the auction sale and in advance thereof, Mr. Brown again asked Harold J. Elkman to pay the rent in arrear and to arrange for security for payment of such further rent as might become payable under the terms of the lease. Mr. Elkman refused to pay the rent demanded and refused to give security.

Mr. Rovner, who had accompanied his attorney, accepting the fact that complainant was seriously ill, consented that sale be made by complainant's auctioneers of the perishable goods and other merchandise in the store. The amount bid and paid therefor was in excess of $400. When the sale of merchandise had been concluded, Mr. Brown addressed Mr. Elkman saying: ‘You have sold the groceries for $400, what are you going to do about the rent?’ Mr. Elkman refused to do anything. Mr. Brown then publicly announced that the owners of the premises claimed a lien for unpaid rent for one year and that, if the sale continued, anyone who did for the store fixtures would do so at his peril as the owners of the premises would not permit their removal. The auctioneers ignored this announcement and proceeded to offer the fixtures for sale. Bids were received and deposits accepted from the defendants I. Abramson, Nick Morelli, George Comen and Joseph Davis who had also been bidders and purchasers when the merchandise was sold. The total amount bid for the store fixtures was $979.60.

When Harold J. Elkman and the auctioneers refused to abandon the sale of store fixtures, Mr. Brown telephoned for a constable. The officer appeared before the sale had been completed and immediately made a list of the store fixtures, and then posted the list, with a notice of distraint and impounding, upon the door of the store. After all those who had attended the sale had left the premises, the constable placed a padlock upon the door; the auctioneers then locked the door with the door key and added a second padlock. On the following morning the door was unlocked to permit purchasers of merchandise to remove their property; the door was then again locked with the three locks; Mr. Brown retained the key to the constable's padlock and Harold J. Elkman the keys to the other two locks. The door has since remained so secured, except that a possible tenant was shown the premises by Mr. Brown with the consent of Harold J. Elkman. The store is still unrented and the fixtures remain triply locked therein.

It is admitted by complainant, indeed he alleges in his bill, that he was in arrear in payment of rent to the extent of $200 at the time the lease was executed; that only two months' rent was paid thereafter; that one month's rent of $175 became due May 10, 1942, and has not been paid; and that, under the fourth paragraph of the lease, the payment of future rent was accelerated when complainant attempted to remove his goods from the demised premises by auction sale. Complainant also admits that, when his landlords made their distress, they were legally entitled to distrain for one year's rent, $1,950. Notwithstanding these admissions, complainant, by interposition of technical claims, seeks to retain $400, the proceeds of the sale of merchandise, obtain $979.60 from the sale of the store fixtures, collect damages from Mr. Rovner,-and escape payment of any rent whatsoever. Complainant makes no offer to do equity, and, obviously, a decree which would bring...