Winter v. Hindin

• Decision Date: 09 December 1926
• Citation: 136 A. 280,33 Del. 294
• Court: Delaware Superior Court
• Parties: MABEL M. WINTER v. ABRAHAM HINDIN, Constable, and WILLIAM J. RYAN and ROSE L. RYAN, Landlords

136 A. 280

33 Del. 294

MABEL M. WINTER v. ABRAHAM HINDIN, Constable, and WILLIAM J. RYAN and ROSE L. RYAN, Landlords

Superior Court of Delaware, New Castle County

December 9, 1926

Superior Court for New Castle County, September Term, 1926.

Replevin No. 126, September Term, 1926.

Amicable action and case stated.

George L. Winter, the husband of the plaintiff, was the tenant of a property belonging to William J. Ryan and Rose L. Ryan, two of the defendants. On October 19, 1925, Winter had become indebted in the sum of $ 310 for arrearage of rent of the premises and on that date, October 19, 1925, was adjudicated a voluntary bankrupt in the United States Court for the District of Delaware. The landlords proved their debt in the bankruptcy proceeding but subsequently, withdrew the claim. On June 11, 1926, the landlords issued their distress warrant to Abraham Hindin, Constable, to collect the rent due to the date of adjudication in bankruptcy. Under the warrant the goods of Mabel M. Winter, the wife of the tenant, were levied on and it is agreed that the husband and tenant had no goods on the premises. The goods being advertised for sale under the landlord's levy a replevin suit was instituted by Mabel M. Winter resulting in this case stated and agreed statement of facts. It is agreed that if the Court shall be of the opinion that the goods were properly levied on then judgment shall be entered in favor of the defendants for $ 310, being the amount of the rent; if the Court shall be of the opinion that the goods of Mabel M. Winter were improperly or illegally levied on, then judgment should be entered for the plaintiff for the sum of sixty dollars as agreed damages.

Judgment entered in favor of the defendants for the sum of $ 310, besides costs.

Harry K. Hoch for plaintiff.

C Stewart Lynch and John J. De Luca for defendants.

PENNEWILL C. J., RICHARDS and RODNEY, J. J., sitting.

OPINION

RODNEY, J.

The plaintiff advances three reasons for the illegality of the levy which will be taken up in order.

First, the plaintiff argues that the distress warrant was issued against George L. Winter and Mabel M. Winter; that the debt being that of George L. Winter and he being the sole lessee of the premises, the wife, Mabel M. Winter, not being a party thereto, Mabel M. Winter was improperly joined therein. The plaintiff argues that the right to distrain for rent is analogous to and dependent upon the right to maintain an action for the rent and that, as Mabel M. Winter was not a party to the lease, and since the rent was not a debt of hers, that the warrant and distress for rent were illegal. The error in this argument is the basic misconception of a distress for rent.

A distress for rent is one of the oldest proceedings known to our law, traceable, perhaps, as Lord Halsbury says, to the Norman Conquest. As originally known to the common law, the distress was simply a taking into the possession of the landlord of any personal property on the premises as a pledge for the payment of the rent or the rendering of the service due by the tenant. There was no power of sale by the landlord of the distrained goods until given by the Statute 2 Wm. & Mary C. 5, in 1689. For this reason the older law did not operate so harshly on the goods of a stranger found upon the premises for since they could not be sold and as their mere retention had no effect in compelling compliance by the tenant the goods of the stranger were generally returned by the landlord.

A distress for rent is not, in Delaware, a judicial action or proceeding. It is simply a summary remedy by which a landlord is entitled, by his own act alone and without judicial process, to take into his possession personal property found upon the demised premises, subject to certain statutory exceptions, and, if not replevied, to sell the personal property so seized to discharge the unpaid rent. Our distress is an extrajudicial statutory remedy, declaratory of the common law, to enforce the payment of an arrearage of rent. There are no parties, properly speaking, to a distress it being an ex parte proceeding in rem.

A distress warrant, in so far as this case is concerned, has little significance. The landlord can distrain for the rent himself. Rev. Code of Del. § 4554. In such case there is, of course, no warrant. If the landlord does not choose to personally distrain he may appoint any one to act for him. In such case there may but need not be a distress warrant. It is simply a power of attorney for the bailiff to act on behalf of the landlord and clothes the bailiff with authority to make entry upon the premises. Bagwell v. Jamison, Cheves (S. C.) 249. Unless evidence of authority is required by the tenant, it is not even necessary that a bailiff should have an express antecedent authority before making a distress, for a distress made without previous authority may be afterwards recognized and adopted by the landlord and such adoption relates back to the time of taking the distress and will be as effectual as a previous authority would have been. Halsbury's Laws of England, vol. 11, p 160, and cases there cited.

There is no analogy so far as parties are concerned, between a distress for rent and an action brought to recover rent which results in a personal judgment.

Secondly, the plaintiff argues that the bankruptcy of the tenant George L. Winter and the resulting opportunity on behalf of the landlord to file proof of the claim for rent barred the right to distrain for the rent. The plaintiff contends that a landlord has no lien upon the goods upon the premises until he has made his right an active one by actual seizure under a distress for rent and that this right and lien cannot be perfected after the adjudication of the bankruptcy, and to support this contention cites several authorities. 16 R. C. L. 1012; 36 C. J. p. 556; Morgan v. Campbell, 22 Wall. (89 U.S.) 381, 22 L.Ed. 796. In re Bishop (D. C.), 153 F. 304; In re Schapiro (D. C.), 286 F. 620.

That a distress at common law was a dormant right or privilege and created no lien upon the goods or chattels until actual seizure has been held by this Court in State v. Gould (Del. Super.), 127 A. 506.

Whether the adjudication of George L. Winter as a bankrupt prevented the operation of the distress for rent calls for a construction of the Bankruptcy Law and a consideration of the objects of it.

The Bankruptcy Act (U.S. Comp. St. §§ 9585-9656) has in view two objects:

(1) To secure possession of an insolvent's assets and procure their equitable division among creditors, preventing and avoiding attempts of one creditor to obtain advantage over other creditors; and

(2) To free a worthy debtor who has given up all his property toward the satisfaction of his debts and has truthfully revealed all information with relation to his affairs from the burden of his unpaid debts.

The purposes of the act are placed in this order because such is their historical importance and rank. Release from debts which now appears often to be the chief end of bankruptcy was anciently not a part of the act at all nor allowed by it. An interesting account of the development of the purposes of the Bankruptcy Act may be found in the Introduction to Remington on Bankruptcy.

Now it would seem that any objection that the distress for rent is violative of the purpose or spirit of the Bankruptcy Law must be based upon one of two theories: (a) That it is in conflict with that purpose of the act which avoids attempts of one creditor to obtain advantage over other creditors, or (b) that the adjudication of the tenant, George L. Winter, as a bankrupt operated as a discharge of the claim of rent other than out of the bankrupt's estate so that there remained no legal claim for rent to constitute a basis for the distress.

It is conceded in the agreed statement of facts that the bankrupt had no goods upon the demised premises but that all the chattels belonged to Mabel M. Winter, his wife, plaintiff herein. It is, therefore, apparent that the landlord does not seek to obtain advantage over other creditors of the bankrupt nor does the distress for rent reduce the amount of the bankrupt's estate. Its tendency would be rather, to increase the amount of the estate for if the claim of the landlord be met by a distress upon the goods of a stranger found upon the demised premises then an additional amount, equivalent to the amount of the rent, would be distributable among the other creditors of the bankrupt. All of the authorities cited by the plaintiff on this branch of the case dealt with a distress for rent solely against goods of the bankrupt. They are all based upon the principle that the goods of the bankrupt after adjudication in bankruptcy are "in custodia legis" and therefore, immune from a distress for rent. With this principle we are in thorough accord, but it has no application in this case.

We are of the opinion also that the claim of the landlord for the rent was not so barred by the adjudication of bankruptcy that it could not sustain the distress. For this conclusion two reasons may be assigned.

The agreed facts stipulate that the distress for rent was laid after the adjudication of bankruptcy and before the discharge of the bankrupt. Now no debts of a bankrupt are ever barred upon an adjudication. It is only the discharge of the bankrupt that has this effect and that may be pleaded in bar of an antecedent claim. But it is equally true that the claim itself is never extinguished. A discharge in bankruptcy is not a payment of an antecedent claim nor an extinguishment of...