Rosenberg v. Shaper

• Decision Date: 01 January 1879
• Citation: 51 Tex. 134
• Parties: HENRY ROSENBERG v. CHARLES SHAPER.
• Court: Texas Supreme Court

51 Tex. 134

HENRY ROSENBERG

v.CHARLES SHAPER.

Supreme Court of Texas.

1879.

APPEAL from Galveston. Tried below before the Hon. William H. Stewart.

Henry Rosenberg leased a brick store in the city of Galveston, in the early part of 1876, to Shaper, by oral lease.Shaper occupied the premises under the lease, with a general stock of dry goods, doing business therein, as a dry-goods merchant, from the 1st of April to the 30th of October, 1876, during the whole of which time he paid no rent.One thousand dollars was then due.At the last-mentioned date, Rosenberg, being informed that Shaper was about to make an assignment for the benefit of his creditors, sued out a distress warrant before Hugo Brosig, a justice of the peace of Galveston county, and placed the same in the hands of the constable for levy.The constable went to the store October 30, but found the same closed and locked up.He went there repeatedly thereafter, but always found the store closed, until the 9th of November.On the 9th of November, he found the store open and in the possession of one Charles Baehr, who held the stock of goods, as assignee, for the benefit of the creditors of Shaper.The constable exhibited and read the warrant to Baehr, and said he was going to levy it.Baehr told the constable that he(Baehr) would not resist the authority, and did not offer any resistance.Baehr held the goods, and told the constable that if he interfered with them, it would be at his own peril.The constable did not make a levy.The constable again exhibited and read the warrant to Baehr on 14th November, and returned the same without making the levy, stating the facts.

Shaper made an assignment of all his assets to Baehr, for the benefit of all his creditors.The assignment was dated the 30th day of October, 1876, was acknowledged on the 31st of October, and filed for record that day.By the terms of the assignment, any right or rights of preference, if any there were, that might exist in law or equity, were to be duly respected and preserved by the assignee in the distribution of the assets.The assignee kept the store closed about ten days, making up an inventory of the stock of goods.In the deed of assignment the stock of goods was estimated to be worth about six thousand dollars.The assignee sold the stock of goods in the manner directed by the deed of assignment.

The attorneys of Rosenberg advised him that the constable had no right to break open the doors of the store for the purpose of levying a distress warrant.

Rosenberg claimed a lien for rents; Baehr refused to give his claim a preference, and he was made a partydefendant to the proceedings in the District Court of Galveston county, to which court the distress warrant was returnable.

Rosenberg filed his petition in the District Court, making Shaper and Baehr defendants, claiming a preference lien upon the stock of merchandise, and praying judgment against Shaper, and that the court would order Baehr to recognize the debt as a prior lien, and to pay the same in full.

At the trial, the district judge sustained the defendant's demurrer to so much of the petition as claimed a lien for rent.A jury was waived and the cause submitted to the court.A personal judgment was rendered against the defendant Shaper, without any lien.Rosenberg appealed.

Ballinger, Jack & Mott, for appellant, cited and discussed Paschal'sDig., art. 7418;Broom'sLeg. Max., 650;Wharton'sLeg. Max., 87;Taylor's Land. and Ten., secs. 583, 578, 593, 594;O'Hara v. Jones, 46 Ill., 292;Stamps v. Gilman, 43 Miss., 464;Noe v. Gibson, 7 Paige Ch., 513;Story'sEq., secs. 1037, 1038;Burrill on Assign., sec. 365;Lewis' Appeal, 66 Penn. St., 312.

M. E. Kleberg, for appellee.

I.The landlord in cities owning and renting premises, has no statutory lien, in this State, upon the goods, wares, and merchandise of his tenant on the rented premises, to secure the payment of the rent.

In support of this proposition, appellee contends that the preference lien provided by the act of April 4, 1874, entitled “An act concerning rents and advances,” applies only to animals, tools, and other property furnished by the rural landlord to the tenant, and to the crop raised on such rented premises.The act gives a lien upon the property “thereinafter indicated.”It then indicates the property as stated above.The urban landlord has no lien by the provisions of said act upon the goods, wares, and merchandise of his tenant for rent.(Paschal'sDig., arts. 7418ci-7418 ih; in re Robinson, 1 Tex. Law Jour., No. 12;Morgan v. Campbell, 22 Wall., 389.)

II.The appellant acquired no lien by the mere suing out of a distress warrant, no levy having been made.

1st.At common law, the landlord had no lien upon the property of his tenant for rent, but he simply had the right to distrain, and he acquired a lien only by the actual levy of a distress warrant.As the mere issuance of an execution gives no lien to the execution creditor, but the lien only arises from an actual levy of the execution, so the distress warrant creates no lien in favor of the landlord until a seizure by virtue thereof has been made.

2d.The constable was guilty of negligence in not levying the distress warrant, if he had any authority under the law to make a levy.He never applied to Baehr to open the doors of the store.

3d.The true reason why the constable failed to make a seizure by virtue of his distress warrant, is because said warrant was a nullity.

III.Under the laws of this State, the urban landlord has no power to enforce the payment of rent that may be due him from his tenant by seizure of property under or by virtue of a distress warrant.

The only authority in this State to issue a distress warrant is to be found in the second section of the “Actconcerning rents and advances,” and by the proviso in said section the warrant can only be invoked to enforce the payment of such rents and advances as are mentioned in the first section of said act.The first section having limited the lien to animals, tools, and other property furnished by the landlord to the tenant, and to the crop raised on the rented premises, it follows that the distress warrant which the appellant had issued and placed in the hands of the constable was a nullity, and no lien could arise by virtue thereof even if a seizure had been effected, much less where, as in this case, there was no levy or seizure whatever.(Paschal'sDig., arts. 7418c,i 7418 Id.)

BONNER, ASSOCIATE JUSTICE.

This case is submitted upon an agreed statement of facts and the following two propositions for our decision:

1.Does the “Actconcerning rents and advances,” of April 4, 1874, give a lien to landlords in towns and cities upon goods, wares, and merchandise in the rented premises, to secure rents that may become due?

2.Under the particular circumstances of this case, is appellant entitled to a preference under said act, by virtue of his having sued out a distress warrant, though no levy thereof was made?

Before disposing of the case, we must commend this practice to the very favorable consideration of the profession.By it the expense of an appeal will be much reduced, and both the presentation and early decision of the case greatly facilitated.

The questions involve the proper construction of the act of April 4, 1874, ...