
    Mullen v. Peck et al.
    
      Intoxicating liquors — Damages from unlawful sale of — How enforced against premises where sold — Practice—Estate in remainder, when not liable — Constitutional law.
    
    1. It is not essential to the right of the plaintiff in an action under section 4364, of the Revised Statutes, to subject the premises where intoxicating liquors were unlawfully sold, to the payment of the damages caused by such sales, either, that the premises should have been leased for the purpose of selling liquor thereon in violation of law, or, that the owner or lessor should have knowledge that such liquors were to be so sold thereon, or knowingly permitted the sales which caused the damages. Such action may be maintained, if the premises were leased to be used for the sale of intoxicating liquor, or were permitted by the lessor to be so used.
    2. Where the premises on which the liquors were sold, were occupied by the seller under a lease from the owner of a life estate therein, the estate in remainder cannot beheld liable for the damages caused by such sales.
    3. Section 4364, of the Revised Statutes, is not in conflict with the fourteenth amendment to the constitution of the United States, nor with section sixteen, of article one, of the constitution of this state: it neither deprives the owner of his property without due process of law, nor of his remedy by due course of law.
    (Decided June 24, 1892.)
    Error to the Circuit Court of Trumbull county.
    The original action was commenced by Margaret Mullen, against Rebecca J. Peck, Alanson Peck and Mary J. Peck, in the Court of Common Pleas of Trumbull county. The petition alleges, that the plaintiff, on November 19, 1887, recovered a judgment in that court, against George Clemens, for the sum of eleven hundred dollars damages,- and forty-nine dollars costs of suit, in an action brought by her against Clemens under section 4357, of the Revised Statutes, for injuries caused her by the sale, by Clemens, of intoxicating liquors to her husband. The petition further alleges, that the liquors were so sold to the plaintiff’s husband, on certain premises specifically described, situated in the city of Warren, Trumbull county, which were then, and are still owned by the above-named defendants, Rebecca J. Peck, Alanson Peck, and Mary J. Peck, who, at the time the sales were made to the plaintiff’s husband, knowingly permitted the premises to be used for the sale of intoxicating liquors. The plaintiff, being unable to make any part of' her judgment out of Clemens, sought by her action below, to subject to its payment, the premises of the Pecks. The answers filed by the defendants, deny the recovery of the alleged judgment against Clemens, and aver there is no record of such judgment. They also deny, that the defendants, or either oí them, knowingly permitted the premises to be used for the sale of intoxicating liquors. The separate answer of Alan-son and Mary J. Peck, avers, that Caleb Peck, who died seized of the premises described in the petition, by his last will and testament, which was duly admitted to probate and record in Trumbull county, devised the premises “ to said Rebecca J. Peck during her natural life, and after her death, over to these answering defendants; that under said will, said Rebecca, who is their mother, entered into possession of said premises, and has ever since, and still does, control the same; that these defendants have not and could not under the will of the said Caleb, or otherwise, control the same; and that they have not leased'the same or exercised any acts oí ownership whatever over the same, and did not lease the same to the said Clemens, or permit him to use them for any purpose whatever.”
    The cause, having proceeded to trial and judgment in the court of common pleas, was appealed to the circuit court, which, upon the trial, separately stated its findings of fact, and conclusions oí law. It appears from the findings of fact, that the plaintiff, on the 12th day of November, 1887, duly recovered judgment against George Clemens, as averred in her petition, for the sum therein set forth, and that the same remains unsatisfied; that the judgment so recovered was for damages caused the plaintiff, by intoxicating liquor which Clemens unlawfully sold her husband on the premises described in the petition, on the 28th and 29th days of May, 1885; at which times, Clemens kept a saloon upon the premises, and was selling intoxicating liquors thereon; that Clemens went into possession of the premises under a written lease executed by Caleb Peck in the ye^r 1880, which lease did not specify for what purpose the premises were to be used, but contained a provision that no liquor should be sold thereon contrary to law; that in the year 1883, Caleb Peck died, leaving a will, which was duly admitted to probate, whereby the premises leased to Clemens were devised to Rebecca J. Peck, the testator’s widow, during her life, and after her death to Alanson and Mary J. Peck, children of the testator; and after the death of Caleb Peck, Clemens continued in' possession of the premises with the consent and agreement of said Rebecca, and was so in possession on the 28th and 29th days of May, 1885, when the unlawful sales of intoxicating liquors were made by Clemens to the husband of the plaintiff; but neither the said Rebecca, or Alanson, or Mary J. Peck had any knowledge of these sales ; nor, had either of them any knowledge that Clemens was selling or giving away liquor upon the premises contrary to law; nor, did they knowingly permit or suffer the premises to be used at any time, by Clemens, or any one for him, fin the sale or giving away of intoxicating liquors 'to any person in violation of law; though, they all knew that Clemens kept a saloon on the premises', and was engaged in the sale of intoxicating liquors thereon. As its conclusion of law, the circuit court held, that to entitle the plaintiff to maintain her action, she must establish, “ either that the premises in question were leased by defendants for the purpose of selling liquor thereon contrary to law, or, that having been leased for a lawful purpose, the defendants knowingly permitted and suffered them to be used to sell liquor thereon contrary to law.”
    Judgment was therefore entered for defendants. The plaintiff applied for a new trial, which was refused, and now prosecutes error to this court.
    
      T. H. Gilmer, and C. H Strock, for plaintiff in error.
    Brief of T. H. Gilmer.
    
    It was evidently the intention of the legislature, in passing section 4364, to give the party liable to injury from the sale of intoxicating liquors some new remedy, or at least a remedy in addition to that given in section 4357.
    To construe section 4364 as it reads, would be to give one who had sustained an injury and had reduced their claim to a judgment, such additional remedy. To construe as contended by defendant in error, would be not to give an additional remedy, but would be a far more limited remedy than that provided for in 4857.
    In section 4364 a personal judgment cannot be obtained, but the property on which the sales are made, alone, can be subjected; hence the legislature struck out the words “contrary to this act” aird “contrary to law,” because if they were inserted, then one damaged had better bring his suit under section 4357, making the owner a party, when if he recovered, he or she would recover a personal judgment, by which not only the property on which the sales were made would be subjected to the payment of the judgment, but all other property of every kind owned by the judgment debtor, and such judgment would be a lien on all real estate of the judgment debtor in the county where judgment was taken.
    In this case, had we joined the Pecks in the original action, we would have had one other or further averment to have made; the averment Ijiat they leased the building for unlawful sales, or having leased, they knowingly permitted unlawful sales to be made thereon, and supported said allegations with proof; we would have had a personal judgment against the Pecks as well as Clemens, that would have reached not only the premises where the sales were made, but would have been a lien on all the real estate of the Pecks in Trumbull county. In short, > would have been a personal judgment; whereas, in the present proceeding, the property only where the sales were made is to be. reached.
    But it is said that this would be a hardship and unconstitutional because it would be a taking without due process of law, etc., defendant not having a day in court.
    This point has already been passed on in the case of Anderson v. Brewster 44 Ohio St., 576 and 584; also, the case of Adler v. Whitbeck, 44 Ohio St., 5391
    Brief of C. H. Strock.
    
    We contend, that the law of -this case is in the exact words of section 4364 as follows: — ■
    “If a person rent or lease to another any building or premises to be used or occupied in whole or in part, for the sale of intoxicating liquors, or permit the same to be so used or occupied in whole or in part, such building or premises so leased, used or occupied, shall be held liable for and may be sold to pay all fines, costs and damages assessed against any person occupying the same,” et seq.
    
    We believe that the above section should be construed independently of section 4357, and, if so construed, it is not necessary to allege or prove that the defendants had any knowledge of the unlawful sale of intoxicating liquors upon the premises. It being sufficient to show that they knew that intoxicating liquors were, in fact, sold thereon. Such a construction, as above indicated, we think, is in a direct line with the decisions of this court upon the statutes enacted, providing against the evils resulting from the traffic in intoxicating liquors; and upon that proposition, we can use no stronger language than was used by McIuvaxNE J. in Frane v. State, 39 Ohio St., 411, and quoted by Minshali, J. in Adler v. Whitbeck, 44 Ohio St., 567. And in Anderson v. Brewster the court say, in referring to S. & C. 1434, that such liability is continued in section 4364, of the Revised Statutes, and the premises may be sold to pay all fines, costs and damages assessed against any person occupying the same. DicemAN J. 44, Oliio St., 584; 1st. Blackstone Com., page 61.
    Now, the cause that lead the legislature to enact section 4364, is the well recognized fact that the trafficking in intoxicating liquors is the source of great evil by causing intemperance, pauperism and crime. And the spirit and reason of the law, if construed in the light that we read it, is to lessen the places where intoxicating liquors are sold, and the persons engaged in such business. And, further, it is a well established rule in this state, in construeing a statute, that “The mischief to be remedied must be regarded.” Wright 233; Tracy v. Card, 2 Ohio St., 431.
    We believe that the legislature intended by enacting section 4364, to place such restrictions upon the owners of property, who are contemplating to lease the same tobe used for the sale of intoxicating liquors, or who permit such premises to be so used, that they would be careful in selecting their tenants, and through them protect the public from the evil of the traffic in intoxicating liquors. For, if the landlord knows that his property is held liable for the unlawful acts of his tenants, he will either select a good and reliable tenant, or will protect himself by placing such tenant under bonds, and thereby secure himself from damages; and in either event the public is the gainer. But if the courts below are correct by inserting the word “unlawful” before the word “sale”, in the third line of the statute, or the phrase “contrary to law” after the word “liquor”, in the same line, the remedial character of the statute is entirely destroyed, and the legislature might as well have passed so much blank paper.
    We cannot believe otherwise, than the legislature intended to say no more, nor any less, than is said in section 4364, and by enacting it, they desired to place a restraint upon a business that is and has been, for many years, the subject of police regulations in this state, by placing such business in the hands of men who will sell intoxicating liquors only as the law says they may; and if a landlord so far forgets himself, or his duty to the public, as to permit his premises to be used by a person not either morally restrained, or restrained by a good and sufficient bond, then he should suffer the penalty of the law, and make reparation for the damages he has' directly caused; and he should not be permitted to say that he had knowledge of the fact that intoxicating liquors were sold upon his premises, and at the same time evade any responsibility by denying knowledge of any violations of the law, by his tenant who conducts a business fraught with so much evil as the trafficking in intoxicating liquors.
    
      Charles Fillms, for defendant in error.
    1. The petition in this case is insufficient because it does not appear therein by proper averment that the premises in question were leased for the purpose of selling intoxicating liquors thereon contrary to the law; or that, having leased the premises for a lawful purpose,.the lessor knowingly permitted them to be used for the purpose of selling intoxicating liquor thereon contrary to law.
    Under section 4357 no personal judgment can be recovered against either the seller or the lessor, except for sales made in violation of law. And in such case it would not be sufficient, for example, to show that the sales complained of had been made to a minor or to a person in the habit of getting intoxicated. It must also appear that in the one case the seller or lessor knew the minor to be such, or in the other, that he knew the person to be 'in the habit of getting intoxicated.
    Now, from a general view of the legislation on this subject, from the original act of 1854, down to the commencement of this suit, it would not seem that the legislature intended to establish one rule of liability for the seller and another for the lessor —- and especially that it was not the legislative intent to hold the property of an innocent lessor — innocent of knowingly permitting unlawful sales on his premises — liable for all sales, whilst the guilty sellor is only liable when it appears that he knowingly sold in violation of law. Nor would it seem that the legislature intended to guage the liability of a lessor’s property by a different rule from that by which it guages his liability to a personal judgment. No reason in the principle or policy of the statute can be found authorizing such conclusions as to the legislative intent. A careful examination of the statute itself conclusively establishes that it contains no warrant for such contention. Certainly it would seem that the charging of any less offense against the landlord, to subject his property to the payment of a judgment against the tenant, than is necessary to be charged against the tenant, would not be tolerated. The plaintiff below was bound to set out in her petition against these defendants, in addition to other facts, substantially the same facts respecting the nature and character of the sales, as she was bound to set out in her original petition against Clemens. I am aware that, having done that, the averments could not have been sustained by the record of the judgment in question, for, as has been shown, the petition in that case does not state a cause of action, under section 4357, and consequently her case must have failed for want of proof.
    But, in addition to the above facts, she was also bound to aver that the premises sought to be subjected to the payment of the judgment were leased for the purpose of selling ^iquor thereon contrary to law, or that, having been leased for a lawful purpose, the lessor knowingly permitted them to be used for the sale of liquors thereon contrary to law. This will appear clear when the true meaning and legal effect of section 4364 is understood.
    In order the better to arrive at that meaning, it will be necessary to recur to the original act of May 1st, 1854, and the amendments thereto. 52 O. E- 153; 61 O. E. 24; 63 OE. 149; 67 O. E. 101; 75 O. E. 35.
    Since the amendments above referred to, no substantial change was made in the statute, down to the time of commencing this action; section seven, in the revision of 1880, being divided into sections 4357-8-9-60-61 and 62, and section ten into sections 4363 and 4364. These sections, are in pari materia, and are to be construed together. Baker v. Beckwith, 29 Ohio St., 314; Anderson v. Brewster, 44 Ohio St., 584 ; Zink v. Grant, 25 Ohio St., 352; Justice v. Lowe, 26 Ohio St., 372.
    II. The construction sought to be given section 4364, by plaintiff’s counsel, is in derogation of art. xiv. of the amendments to the Constitution of the United States, and of section 16, art. I, of the Constitution of Ohio.
    The contention of counsel for plaintiff in error, giving all the effect claimed by them to the record of the judgment against Clemens, is, that Mrs. Peck’s property, having been leased by her to Clemens to sell liquor thereon according to law, and having been used by him, without her knowledge, permission or participation in any way, to the injury of Mrs. Mullen, by selling liquor unlawfully to her husband, is now liable to the satisfaction of this judgment. For this claim warrant is found, it is asserted,, in the second clause of section ten, or, as the sections are now arranged, in the first clause of section 4364. To this end they are driven to an exact literal construction of this clause, ignoring the history of the clause itself, its amendments from time to time, as well as the other clauses of the statute in pari materia, and those rules of interpretation, which the wisdom of the courts have evolved for arriving at the true meaning of a law making power in a given enactment!
    It seems to me that their contention upon the question of the meaning of this clause is inadmissible, because it brings the statute into sharp conflict with art. xiv. of the amendments to the Constitution of the United States, and section 16, of art. I, of the Constitution of the state.
    If the statute in question is to be construed as claimed by counsel, what meaning and effect have these solemn constitutional guaranties to Mrs. Peck, who is compelled to stand by and see her property taken, without being able to raise her voice in our courts against it. Her first and only intimation, according to this record, of the existence of this judgment for the satisfaction of which her property is sought to be taken, is a summons notifying her of plaintiff’s demand for the sale of her property by virtue of it. She knew nothing of the original proceeding. She could not defend against it. For aught she knows the judgment was recov■ered by fraud, or the negligence of the defendant, or ■connivance of the parties to it. But it matters not, for it is the end of the law and her recourse under it, so far as she is ■concerned, notwithstanding she is entirely innocent of the cause of complaint upon which the alleged judgment was rendered. Under the contention of counsel for plaintiff, ’the record of the judgment practically settles all questions between the judgment creditor and the property owner. Bringing the property owner for the first time into court, in answer to a summons for an ■ order to sell her property on this judgment, is but a farce and a parody on justice, and the constitutional guaranty that she shall have her day in ■court. 58 Iowa 89 ; Binder & Finkbone, 25 Ohio St., 103 ; Adler v. Whitbeck, 44 Ohio St., 569 ; Anderson v. Breweier, 44 OhioSt., 581.
   WiKUAMS. J.

The plaintiff, Margaret Mullen, having recovered a judgment against George Clemens, for damages resulting from the unlawful sale, by him, of intoxicating liquors to her husband, brought the action below, to subject the premises occupied by Clemens when the sales were made, to the payment of her judgment; the premises then being the property of the defendants below, who, it is alleged, permitted them to be used for the sale of intoxicating liquors thereon.

The action was brought under section 4364, of the Revised Statutes, which reads as follows : “If a person rent or lease to another, any building or premises to be used or occupied, in whole or in part, for the sale of intoxicating liquors, or permit the same to be so used or occupied, in whole or in part, such building or premises so leased, used or occupied, shall be held liable for and may be sold to pay all fines, costs, and damages assessed against any person occupying the same; proceedings may be had to subject the same to the payment of any such fine and costs assessed or judgment recovered, or any part thereof, which remain unpaid, either before or after execution issues against the property of the person against whom such fine and costs or judgment bave been adjudged or assessed; when execution: issues against the property so leased' or rented, the officer shall proceed to satisfy the same out of the building or premises so leased or occupied; if such building or premises-belong to a minor, insane person, or idiot, his guardian having control thereof shall be liable and account to his-ward for all damages on account of such use and occupation, and the liabilities for the fines, costs and damages aforesaid; and all contracts whereby any building or premises are rented, or leased, and the same used or occupied, in whole or in. part, for the sale of intoxicating liquors, shall be void, and. the lessor shall, on and after selling or giving intoxicating, liquors as aforesaid, be considered and held to be in possession of such building or premises.”

The principal question presented is, whether, under this-section of the statute, in order to charge the leased premises where the liquors were illegally sold, with the payment of' a judgment rendered against the seller for damages caused, by such sales, it is essential, either that the premises be let for the unlawful sale of intoxicating liquors thereon, or be permitted by the lessor to be used for such unlawful purpose. Or, may the premises be so charged when they are leased to be used for the sale of intoxicating liquors, or permitted', by the lessor to be so used, if the lease contain a provision that the lessee shall not sell contrary to law, and the lessor have no knowledge of illegal Sales by the lessee?

In support of the judgment-below, it is contended, (1),. that to hold the premises liable under the statute, they must have been leased for the unlawful purpose of selling liquors thereon contrary to law, or, such unlawful use must have been knowingly permitted by the lessor; and, (2), that unless the statute be given that construction, it is unconstitutional. To sustain the judgment of the circuit, court, it is necessary to maintain one or the other of these-propositions.

It is conceded that section 4364, does not in terms,, limit the liability of the premises as stated in the first proposition. Its language is, that the premises “shall be held; liable for * * damages assessed against any person: occupying the same,” if they were rented or leased to be used “for the sale of intoxicating liquors,” or permitted “to be so used;” and not, that the premises shall be held liable if they were rented for the sale of liquors in violation of law, or permitted to be so used; so that, in order to give the statute the effect contended for, it becomes necessary to add, by construction, a provision it does not contain. This, the court is not at liberty to do, unless there is something in the context which justifies it. It is claimed that such construction is warranted, when the section is read in connection with section 4357, which provides: “ Every husband, wife, child, parent, guardian, employer, or other person injured in person or property, or means of support, by any intoxicated person, or in consequence of the intoxication, habitual or otherwise, of any person, shall, after the giving and during the existence of the notice provided for in the next section, have a right of action in his or her own name, severally or jointly, against any person or persons, who, by selling or giving intoxicating liquors, have caused the intoxication, in whole or in part, of such person; and the owner of any building or premises, and the person renting or leasing the same, having knowledge that intoxicating liquors are to be sold therein, in violation of law, or, having leased the same for other purposes, knowingly permit intoxicating liquors to be sold therein,that have caused the intoxication, in whole or in part, of such person, shall be liable severally or jointly with the person or persons selling or giving intoxicating liquors as aforesaid, for all damages sustained, as well as exemplary damages.”

That section makes the lessor, having knowledge that intoxicating liquors are to be sold on the leased premises in violation of law, a joint wrong-doer with the lessee who makes the illegal sales, and authorizesythe person injured thereby, to sue both, or either, for all damages caused by such sales. To maintain the action against the lessor, under that section, it is necessary that he have .knowledge that liquors are to be sold on the leased premises in violation of law, or, that he knowingly permitted the sales that caused the injury. His liability is personal; the damages are made a lien on all of his real estate; and for the payment of the damages all of his property, of every kind, without exemption (except the articles specified in section 5430,) may be taken. Revised Statutes section 4363.

The remedy under section 4357 is more direct, and more comprehensive than that under section 4364. Under the former section, the injured party may recover directly against the lessor, either jointly with the seller, or severally, all damages sustained by reason of the unlawful sales, and immediately siezé, on execution, all of his property, except that specifically exempted, for the payment of the same; while undér the latter section, the remedy is only against the specific property on which the liquors were sold, and must be pursued by separate' action, after the recovery of judgment against the seller. If the same facts, which entitle the party injured, to the more direct and comprehensive remedy, must be established in order to make available the other and more limited one, the latter would appear to be unnecessary, and the section providing for it, without practical operation; for, upon the facts necessary to enable the plaintiff to maintain an action under the latter section, he could under the former section obtain the same, and even greater relief. In accordance with a well settled rule of interpretation, these sections of the statute must be so construed as to make, if possible, all their provisions operative; and to do this, it is only necessary, we think, to accord to the language of section 4364 its plain meaning. That does not make it essential, in order to charge the leased premises where the liquors were illegally sold with the payment of the damages caused by such sales, either, that the premises be leased to be used for the purpose of selling intoxicating liquors thereon in violation of law, or, that the lessor have knowledge that such liquors are so sold, or that he knowingly permitted the sales which caused the damages. It is sufficient, if the premises were leased to be used for the sale of intoxicating liquors, or were permitted by the lessor to be so used. With the policy of the statute, which counsel have discussed at some length, the court is not concerned. The duty is not devolved upon it, to find a good reason for the statute, or one against it. Tbe province of the court is limited to the due administration of the statute as it comes from the hands of the legislature, if it he free from constitutional objection.

Is the section (4364) unconstitutional?. It is contended that it is in conflict with the fourteenth amendment to the constitution of the United States, and also with section sixteen of article one of the constitution of this state, in that, it deprives the lessor of his property without due process of law, and of his remedy by due course of law. In support of this contention, it is argued, that the lessor is not a proper party to the action against the liquor seller, and has, therefore, no opportunity in that action to contest the plaintifPs claim; nor is he allowed, in the action brought against him to subject his property to the payment of the judgment obtained against the seller, to controvert any fact upon which the judgment is founded; and so, it is said, his property may be thus taken without giving him a day in court. .

The position, we think, is not sound. True, the lessor is not a necessary party to the action for damages against the person whose unlawful sale of liquors caused the plaintiffs injury. Whether the court, in the exercise of its discretion, might permit him to intervene and contest the plaintiff’s right to judgment, we need not decide. That question is not before us. It is also true, that the judgment recovered against the seller of the liquor, when not obtained by fraud or collusion, is so far conclusive against the lessor of the premises where the sales were made, that the latter cannot dispute the sales, or their illegal character, or the damages resulting therefiom. But the unlawful sale of liquor by the tenant, resulting in damages to the plaintiff, does not, of itself, create any charge upon the property of the landlord, nor does the judgment against the seller, itself operate to make the property liable for its payment. The premises on which the liquors were sold, can only be held liable for the damages, when they have been leased to be used for the sale of intoxicating liquors, or have been permitted by the lessor to be so used; and, to subject the leased premises to the pay-meat of the judgment recovered against the tenant, an action must be instituted in a court of competent jurisdiction, for that purpose, against the. lessor, and prosecuted to final judgment against him. The plaintiff in that action, must allege in his petition, all the facts required by the statute, to make the premises liable; among them, that the premises were leased by the defendant to be used for the sale of intoxicating liquor, or were permitted by him to be so used, and, that the unlawful sales which caused the plaintiff’s damages were made on the premises. It is competent for the defendant to controvert any or all of the allegations of the petition, and interpose any other defense he may have; and it is incumbent on the plaintiff, to establish on the trial, the facts necessary to entitle him to judgment. Whether the premises are liable for the payment of the damages awarded the plaintiff against the person whose illegal sale of the liquor caused them, is the question which concerns the defendant, and on that question he has his day in court, with full opportunity to be heard. He has the right of appeal from any judgment that may be rendered against him, and may prosecute error as in other civil actions; so that, he is not, in any sense, deprived of his remedy by due course of law, nor of his property without due process of law. Binder v. Finkbone, 25 Ohio St. 103; Bertholf v. O'Reilly, 74 N. Y. 509.

The question arises upon the pleadings, and facts found by the circuit court, whether anything more than the estate which the lessor has in the premises leased, or permitted to be used for the sale of such liquors, can be made liable for the payment of the judgment recovered against the tenant.

It appears from the findings of fact, that the premises on which Clemens made the sales, on account of which the plaintiff recovered her judgment against him, were originally rented to him by Caleb Peck, the owner, in 1880, who died in 1883, leaving a will, by which the premises were devised to the defendant Rebecca J. Peck for life, remainder to the defendants Alanson and Mary J. Peck; and when the sales were made by Clemens, on the 28th and 29th of May, 1885, he was occupying the premises under a continuance of the lease by the consent and agreement of the owner of the life estate only; the effect of which, is the same, as if he were in possession under a new lease made by her. We are satisfied it is only her estate in the property that can be subjected to the payment of the plaintiff’s judgment; and that the estate in remainder cannot be taken. The statute makes void the lease under which the premises were occupied when the liquors were sold, and declares that the lessor shall thereafter be considered and held to be in possession. The effect of the statute was to restore the possession of the premises in question to Rebecca J. Peck. Her life estate was not terminated. Nor can it, with propriety, be said that the owners of the estate in remainder permitted the premises to be used for the sale of liquors; for, during the continuance of the life estate, -they have no control over them. And their estate in the/ property could not be made liable by any act of the owner of the estate for life.

The judgment of the circuit court will be reversed, and judgment entered subjecting the life estate of Rebecca f. Peckt to the payment of plaintiff's judgment. As to the other defendants the judgment is affirmed.  