
    Harvie and Another v. Wickham.
    April, 1825,
    Richmond.
    (Absent Tttckbb, P., and Bbockenbbough, J.)
    Landlord and Tenant  —Distress—Deed of Trust — Case at Bar. — A tenant having- household furniture on the leased premises, conveys it by deed of trust to trustees for payment of just debts, but the goods remain in possession of the tenant on the premises, and the lessor distrains them for rent in arrear: Held, these are not goods belonging to the trustees, and so exempted from the lessor’s distress for rent, within the meaning of the statute 1 Rev. Code, ch. 113, § 15.
    Deed of Trust for Benefit of Creditor — Description of Subject — Certainty.—Deed of trust for benefit of creditors, duly recorded, conveys “all the grantor's household and kitchen furniture then held and used by him at his residence at R.” Quere, whether the conveyance be not void, as against the grantor’s other creditors, for the vagueness and uncertainty in the description of the subject?
    In assumpsit in the circuit court of Hen-rico, by Harvie and Robinson against Wickham, for money had and received by the-defendant to the plaintiffs’ use, to which the defendant pleaded the general issue, there was a case stated and agreed by the parties, in substance, as follows—
    *1. Wickham, by deed dated the 27th December 1815, leased a house in Richmond to Johnson, for one year, to commence on the 8th March 1816, and to end on the 8th March 1817, for 620 dollars yearly rent, payable quarter yearly; with a proviso, that the tenant should be at liberty, after the end of the year, to continue tenant from year to year, on the same terms, unless, the landlord should give him four months notice to quit. Under this lease Johnson, entered and continued to hold the premises, from year to year, till after the 8th March 1823, in the latter part of which month, and while Johnson was still in possession, Wickham caused a distress to be levied for rent in arrear, on some household furniture, which was then in the house, and had been there ever since the commencement of the lease.
    2. Johnson, while in possession under the lease, by deed dated the 8th July 1818, and duly recorded in the hustings court of Richmond, conveyed to Harvie and Robinson, sundry real and personal estate particularly described, and “all the household and kitchen furniture then held and used by him at his residence in Richmond,” upon trust to sell and dispose of the trust subject, when they should be thereto required, for the payment of certain debts, therein men- ' tioned, and the indemnification of the sureties for the same.
    3. The trustees Harvie and Robinson claimed the furniture which Wickham after-wards distrained, as being the same household and kitchen furniture of Johnson then at his residence at Richmond, conveyed to them by the deed of July 1818. But the goods had hever been in their possession; nor had Wickham any notice of these goods being mortgaged by the deed, other than such notice as might be implied by law from the due registry thereof.
    4. When Wickham distrained the furniture for rent, the trustees, Harvie and Robinson, asserted their claim to it, and would have brought replevin for it, but it was 'x'agreed between the parties, that the goods should be sold under the distress, and the net proceeds of sale held subject to the claim of the trustees. It was accordingly sold under the distress; and the net proceeds, 424 dollars, were paid over to Wickham.
    5. The trustees afterwards sold all the rest of the trust subject mortgaged by the deed of July 1818, and the proceeds fell short of satisfying the debts thereby secured, by an amount exceeding the 424 dollars, for which the furniture had been sold under Wickham’s distress. And then they brought this action to recover the 424 dollars.
    The parties agreed, therefore, that a jury should be empaneled to inquire, whether the furniture sold under Wickham’s distress, was the same furniture conveyed to the trustees by the deed of July 1818, and if they found it to be so, that they should find a verdict for the plaintiffs for 424 dollars, subject to the opinion of the court on the case agreed. And if the jury should find such verdict for the plaintiff, then it was further agreed, that, if the court should be of opinion, that the plaintiffs could have recovered the furniture itself in an action of replevin, judgment should be rendered for the plaintiffs, for the amount of the proceeds thereof, received by the defendant; otherwise, judgment should be rendered for the defendant.
    The jury found fer the plaintiffs 424 dollars damages, subject to the opinion of the court on the case agreed. The court held, that the law on the case agreed was for the defendant, and gave judgment for him. And the plaintiffs appealed to this court.
    The cause was argued here, by Stanard for the appellants, and Johnson for the ap-pellee.
    I. One question was debated at the bar, which was not noticed by the court; viz. Whether the deed of trust of July 1818, describing the furniture therein conveyed, *in vague and uncertain terms, as “the household and kitchen furniture then held and used by the grantor at his residence in Richmond,” was effectual to vest the property in the trustees, as against the creditors of the grantor? The question was suggested by the doubt expressed by the court, in Galt & al. v. Carter, 6 Mtmf. 245-9.
    II. The main question was, Whether goods remaining on leased premises in possession of the tenant, though bona fide conveyed by him to trustees, by deed duly recorded, to secure debts, are, notwithstanding such mortgage, subject to be distrained by the lessor for rent in arrear? And this question depended on the construction and effect of the statute of 1815, ch. 15, $ 7, incorporated in the revised statute concerning rents &c. 1 Rev. Code, ch. 113, § IS, p. 450. 
    
    Stanard for the appellants,
    said it could not be questioned, supposing the objections to the deed of July 1818 for uncertainty put out of the way, that that conveyance vested the legal property of the furniture thereby convej'ed in the trustees ; and he contended, that this was “goods and chattels bona fide belonging to other persons *than the tenant of the premises,” at the time of the distress made, within the meaning of the statute, and so was protected by it from the landlord’s distress. It was only the owners of the legal property in the goods, who could avail themselves of the protection. The case here was the same, as if the tenant had mortgaged the goods, and thus vested the equitable as well as the legal interest in the mortgagee, and he were now asserting his right to them: the trustees held for the benefit of the ces-tuis que trust; they asserted the legal right for the owners of the equity'. The language of the statute was general, embracing, and protecting from distress, all the rights and interests, without discrimination, of all other persons but the tenant, in goods on demised premises; while any rights or interests of the tenant in the same goods, were left still liable to distress. So far as the legal property in the furniture was vested in the trustees, for the benefit of the cestuis que trust, the furniture was not dis-trainable; but the tenant had the equity of redemption, and that was liable to be dis-trained and sold for the rent in arrear; for the first proviso in the statute expressly provided, that if the tenant has any limited property' or interest in the goods, that may be distrained and sold. And this proviso, he argued, authorizing a distress and sale of the tenant’s equity of redemption, plainly shewed, that the general enactment, to which the proviso was an exception, embraced and protected the rights of the trustees holding the legal estate, and of their cestuis que trust. If it should be objected, that as the conveyance to the trustees was made during the lease, when the goods thereby mortgaged were liable to distress, they could not be exempted from distress by the deed; the answer was* that the same argument would be equally applicable, if the tenant had made an actual absolute sale of the goods; in which case, he thought it clear, the goods would not have been dis-trainable for rent.
    ^Johnson for the appellee,
    remarked that the language of this provision of the statute, was very loose. If a tenant entitled to a life estate, or other particular interest, in personal chattels, should keep them on the demised premises, and these chattels should be distrained by the landlord, and sold absolutely, it could hardly be doubted, that it wás the intention of the statute to protect the rights of the rever-sioner or remainderman; yet the second proviso withdrew the protection from him; for it provided, that no 'person claiming title to property distrained for rent, should avail himself of the statute, in any manner, but by replevin sued out and levied before sale under the distress; but a rever-sioner or remainderman of personal chattels could not bring replevin, since he could not maintain trespass, and replevin could lie only where trespass would lie. He remarked further, that the action of replevin, by which alone other persons than the tenant were authorized to assert their rights of property, was plainly the common law remedy of replevin ; and by a subsequent statute it was provided, that the remedy by action of replevin should be construed to exist in no other cases than those which might arise under the general statute concerning rents and regulating the practice in writs of replevin. 1822-3, ch. 29, Supp. to Rev. Code, ch. 193, g 9, p. 255.
    He said, the statute in question, was an innovation on the common law, and should, in the construction, be strictly confined to the mischiefs it was .intended to remedy. By the common law, all personal chattels permanently abiding on demised premises, were distrainable for rent, with some exceptions, exempting from distress, property casually on the premises, such as goods of a guest at an inn, cloth at a tailor’s and the like. If property was hired or bailed to a tenant for a limited time, such property, being on the demised premises, was liable to distress and sale for rent in arrear, out and out; which the legislature thought a hardship and *a mischief. To such cases as that, the first proviso, authorizing the distress and sale of the tenant’s limited interest in the chattels, was exactly applicable; and thus, he argued, the proviso .shewed the meaning and extent of the.whole enactment. Thetrevised statute of rents of 1818, in which the provision in question of the statute of 1815, was incorporated with the provisions of many other statutes, inhibited the levying of an execution at the suit of a creditor of the tenant, on goods upon demised premises, unless the creditor should first pay the lessor his rent in arrear; and it prohibited the tenant himself from removing his goods from the demised premises, and gave the lessor an attachment to hold the goods subject to the rent. 1 Rev. Code, ch. 113, g 7, 8, 9, 10, 11, pp. 448, 9. It could hardly be imagined, that the legislature meant, by the 15th section, to enable the tenant by mortgage to give a creditor a-.preference for his debt, over the lessor for his rent, which the other provisions of the statute denied to a creditor by execution ; or to enable the tenant to authorize other persons to take his goods from the demised premises, which the law interdicted him from doing himself, and gave the lessor a remedy to prevent and redress. He referred to the 24th section of the same general statute, providing that where any person shall suggest, that goods distrained for rent are his property, and not the property of the tenant, nor held in trust for the use of the tenant in any manner whatsoever, he may sue out a writ of replevin for the goods. This provision enacted in 1769, being incorporated and re-enacted with the provision of the statute of 1815, in the revised statute of 1818, and the two provisions being in pari materia, the one was explained and limited by the other. As the writ of replevin was given by the 24th section, only to such person as claimed goods dis-trained as his own, and not the property of the tenant, nor held in trust for him in any manner whatsoever, so ^neither should the 15th section be intended to exempt goods- on the premises from distress for rent, in favour of any claimant holding them in trust for the use of the tenant in any manner whatsoever. Now, he said, the trustees to whom the tenant conveyed the goods which were afterwards distrained for rent, in the present case, did hold the goods, in some sort, and indeed principally, for the use of the tenant: they were, at the least, trustees for his use of any surplus that might remain after satisfying the purposes of the trust: but more, they were trustees for his use, in executing the trust confided to them ; for their trust was to sell and apply his property to the payment of his debts, which he was interested, as well as his creditors, to have discharged.
    
      
      He decided the case in the circuit court.
    
    
      
       Landlord and Tenant — Distress—Goods Distrainable. —At common law, all goods found on the leased premises were subject to the landlord’s lien for rent, no matter to whom they belonged. City of Richmond v. Duesberry, 37 Gratt. 213, opinion of Christian, J. See also, Mosby v. Leeds, 3 Call 445, opinion of Lyons, J.
      Same — Same—Same—Property of Third Person. — But the property of a third person never was liable to distress, unless it were found upon tbe premises : and even where it is found there, the distress is taken away by the act of 1818, 1 Rev. Code, ch. 113, sec. 15. Davis v. Payne, 4 Rand. 332.
      Same — Same—Trust Deed — Priority.—City of Richmond v. Duesberry, 27 Gratt. 210, and Upper Appomattox Co. v. Hamilton, 83 Va. 319, 2 S. E. Rep. 195, were both cases of contests between a landlord on the one hand and a deed of trust creditor on the other, each claiming the right to subject the same property in preference to the other. See Wades v. Figgatt, 75 Va. 575.
    
   CABRL,Iv, J.

The question presented by this case, is, whether property of a tenant, found on the demised premises, but which has been conveyed by him in trust for the payment of his debts, is liable to be dis-trained. and sold for the payment of rent in arrear? The question depends on the construction of the 15th section of the statute concerning rents &c. which provides, “that no goods or chattels found or being in or upon any demised premises, such goods and chattels bona fide belonging to any person other than the tenant &c. shall be liable to be distrained for the payment of such arrears of rent.” In construing statutes made in derogation of the common law, we are first, to consider the mischief or inconvenience which the legislature intended to remedy. The mischief or inconvenience of the common law, in relation to the rights of landlords, was, that they were allowed to distrain all goods and chattels found on the demised premises (with some few exceptions) even although the tenants might have no manner of property therein. The1 object of the legislature was to remedy this inconvenience; and for this purpose, the foregoing section was introduced into our *code. What, did the legislature mean by the terms, “goods and chattels bona fide belonging to any person other than the tenant?” Hid it mean goods and chattels situated like those which are the subject of this controversy? I think not. A mortgagee is not the bona.fide owner of the mortgaged property; nor is a cestui que trust, nor even his trustee, the bona fide owner of the property conveyed in trust for the payment of debts. Although mortgagees and trustees are the holders of the legal title, their bona fide ownership is only a lien on the property for the payment of their debts. The mortgagor, or grantor in the deed of trust, is still regarded, for all substantial purposes, as the bona fide owner of the property, subject however to the lien. I think the object of the legislature, was to change the law, so far only as to protect the interests of those persons, other than the tenant, who have a bona fide ownership in goods and chattels, in possession, remainder or reversion, and not the interests of mortgagees, or of trustees for the payment of the debts of the tenant. And this seems to be proved by the proviso which declares that “if the tenant &c. shall have any limited property or interest in such goods and chattels, the same may be distrained and sold for such interest as such tenant &c. may have therein.” I am of opinion, that the judgment should be affirmed.

BROOKE, J.

To understand the provision of the statute in question,it is necessary to advert to the principles of the common law on the subject, and to the mischief which the statute was made to remedy. The reason of the common law, in subjecting all goods and chattels found on demised premises, to the distress of the landlord for rent in arrear, was to prevent frauds that might be practised by the tenant, who, being in possession, might devise and practise many false pretences to cover the property from the distress for rent, *which it would be very difficult, if not impossible, for the landlord to detect. The exceptions to this rule of the common law, were very few; confined' to cases in which the tenant’s possession of the property was, clearly and evidently, a possession of the property of a stranger, held by the tenant only for the purpose of his trade or business which could hold out no false colours to defeat the landlord’s remedy by distress; as a horse at an inn, or at a shop to be shod, cloth at a tailor’s to be made into clothes &c. But this rule of the common law, qualified by such exceptions only, was found to operate very harshly, in many cases, in which for bona fide purposes, or by casualty, the property of a stranger was found on demised premises; and it was to remedy mis-chiefs of that kind, that the provision of the statute now under consideration, was enacted. It exempts from distress for rent, ■“goods and chattels bona fide belonging to any person other than the tenant,” though found on the demised premises; meaning, plainly, I think, to confine the exemption to goods and chattels exclusively the property of a stranger; not to exempt property in which another person, as well as the tenant, has some interest, as in the case of mortgages or deeds of trust, or any other qualified right, such as would conduce to deprive the landlord of his remedy by distress, or to postpone it for an investigation of the rights of others. This is made more manifest by the provision of the statute of 1822-3, ch. 29, Supp. to Rev. Code, ch. 193, $ 2, p. 254, which authorizes the landlord to distrain for rent, any property which the tenant may have fraudulently conveyed away, or permitted to be removed, from the premises, within thirty days after the removal of it, provided such property shall not have been sold for a bona fide consideration before it shall have been distrained; precluding any other disposition of the property by the tenant, and this too, after it has been removed from the premises, and so less known to '1‘be subject to the landlord’s distress, than when it remained on the premises; and making no exception of property, in which another besides the tenant, may have a qualified right. The first proviso of the 15th section of the general statute of rents, does not refute the construction I put on the previous words of the section, but, in truth, confirms it. It provides, that if the tenant have any limited property in the goods claimed by the stranger, such limited property of the tenant may be distrained and sold for rent; meaning to subject to distress, any distinct and exclusive interest which the tenant may have in such limited property, not a qualified right of the tenant mixed up and involved -with the rights of others, as in the case before us. It is unnecessary to notice any other point made in the argument at the bar. I am of opinion, that the judgment be affirmed.

CARR, J., concurred. Judgment affirmed.  