
    Gibson et al. vs. Gautier.
    In Equity.
    No. 5416.
    Decided February 21, 1881.
    The Chief Justice and Justices Wylie and Hache» sitting.
    1. Although a irauduleuS sale of goods be set aside, they are nevertheless liable to the landlord’s lien for rent due by the fraudulent ven-dee to the landlord upon whose premises they have been kept, and this notwithstanding there are judgment creditors of the vendor whose executions issued before the landlord’s lien attached.
    2. By the provisions of Section 678 of the Revised Statutes of this District, the landlord’s lien for rent, if it exists at the time he commences proceedings in attachment, continues until the termination of' those proceedings, and his lien is not destroyed by the fact that at the time of issuing his attachment the goods were in the custody of the marshal under a levy made at the instance of an execution creditor.
    3. An order unappealed from upon a hearing on hill and answer discharging a prior order restraining an execution sale of property and directing the marshal to pay certain judgments out of the proceeds, is not examinable on the hearing of an appeal from a decree subsequently made upon new and different facts raised by an amended and supplemental bill, filed by leave of court, when the leave granted to file the same does not reserve the right to raise any question as to the propriety of the order.
    4. Nevertheless the court, (referring to this order), express the opinion that the statute of YIII Anne, cli. 14, is in force in this District, and that if the marshal levy an execution and make sale of property, he is obliged, after due notice given him by the landlord, upon whose premises the goods are, to pay from the proceeds all rent due up to the time of the sale, and if the sale take place during the month there can be no division of the rent for that month. To compel the marshal to pay over one year’s rent, the landlord may move the court out of which the execution issues for an order to iiay the amount due him from the sale, and this motion may be made at any time before the money is paid over, the marshal being bound on the receipt of a landlord’s notice to retain the money.
    5. It seems, also, that the lien of the landlord is not lost or impaired by his suspension for a month of the execution issuing under the judgment obtained in the attachment proceedings.
    STATEMENT OE THE CASE.
    The facts of the case are complicated and require a somewhat lengthy statement.
    The plaintiff's, as copartners, filed their bill against the defendants, March 2, 1877, averring that on the 6th of September, 1876, they recovered a judgment at law against the defendant Gautier for $538, on which, in October, 18-78, a writ of fieri facias was issued and returned on the same day by the marshal nulla bona; that previous to the 28th of March, 1875, Gautier was engaged in the wholesale and retail liquor business in Washington, and being embarrassed and unable to meet his maturing obligations, and with a desire of saving his property from . sacrifice, .on the last named day, he made an arrangement with Hoover,, his son-in-law, by which all his stock in trade and the business which he had theretofore carried on, was transferred to Hoover, and thereafter the business was conducted in Hoover’s name ; that this said sale and transfer was totally without consideration, for the purpose of placing the stock of goods beyond the claims of .the creditors of Gautier, and were in fraud of the plaintiffs’ rights ; that Hoover had caused the stock of goods to be advertised for sale at auction on the 3d of March, 1877 ; that Hoover is entirely insolvent ; that if the sale should take place, the proceeds would pass into his hands, and the plaintiffs would be unable to collect any part of their judgment; and they prayed that Hoover may be enjoined from selling or interfering with the stock of goods until the hearing ; that the pretended sale of Gautier to Hoover be decreed to be fraudulent and void, and that a receiver be appointed to take possession of the goods and make sale thereof ; and after paying the expenses, to pay the plaintiff the amount of his judgment, and bring the remainder into court for the benefit of the other judgment creditors of Gautier who may come in and contribute to the expenses of the suit, and for further relief.
    A restraining order was issued, as prayed.
    On the 16th of March the plaintiffs filed an amended bill in which they alleged that they had since ascertained that Elias Travers who was the landlord of the store in which Gautier and Hoover had been carrying on business, had a large claim against Hoover for rent, and that Travers had instituted proceedings in attachment under the landlord and tenant act ; that the attachment had been levied by the marshal upon the goods described in the original bill, and that by an arrangement -between the landlord and Hoover, so much of the goods as wore sufficient to satisfy the claim of Travers for rent was to be sold at the sale advertised, and the balance of the stock was to be returned -to Hoover. They aver that the goods never belonged to Hoover, and were not subject to the landlord’s lien for rent du'e by Hoover to Travel's ; that Travers was about to apply to the circuit court for judgment of condemnation of said goods, and the prayer of the amended bill is that he should be required to answer, and that Travers may be restrained from applying to the circuit court for condemnation in the attachment proceedings or from taking any further steps therein until the further order of the court.
    Gautier filed his answer in which he admits all the allegations of the bill.
    On the 29th of March Hoover filed his answer in which he alleged that he, together with a certain Griffin, purchased for a valuable consideration, all the interest of Gautier in the stock of goods ; and he set forth circumstantially the various payments and securities he claimed to have given for the goods. He averred that a part of the purchase money is unpaid because unsettled accounts between Gautier and himself were pending. He denied that he had caused the goods to be advertised for sale, or that he had agreed or colluded with any one for the purpose of defrauding any one, but states that he was indebted to Travers for rent, and that the advertisement spoken of in the bill was made by the marshal, under an order of condemnation, at the suit of Travers.
    The answer of Travers was filed on the same day. He avers that Gautier had been a yearly tenant of his for many years, at a rent of $250 a month, of the property on Pennsylvania avenue ; that he was informed and believes that Hoover and Griffin bought out all the interest of Gautier in the stock in trade, and continued the business under the style of Hoover & Co.; that he accepted them as his tenants from the 1st of April, 1875, at the rent of $250 a month, and that his said tenants being in arrears on the 30th of December, 1876, he issued an attachment for $573 for rent in arrear up to the first of the said month of December ; that on the 12th of February, 1877, he issued another attachment for two months’ rent for the months of Decern-her, 1876, and January, 1877 ; that both these attachments were levied by the marshal on the 12th February, 1877; that he obtained judgment of condemnation on the 6th of March, 1877, on which execution was issued, and the property was advertised to be sold on the 20th of March.
    On the 29th of March, 1877, the court passed a decree reciting that the case coming on to be heard upon bill and answers, and being argued by counsel, it is thereupon by the court adjudged, ordered and decreed, that the restraining order heretofore granted, should be discharged, and that the two judgments of condemnation for i’ent be paid, and that the residue of the said sum of money remaining in the hands of the marshal should be retained by him until the further order of the court.
    Afterwards, on the 10th of January, 1878, the cause came on to be heard on the pleading and evidence, and was submitted to the court, and it was ordered and decreed that the sale of the stock of goods by Gautier and Hoover should be held fraudulent and void ; that Hoover had no interest or title therein by virtue of the sale, and the plaintiffs were allowed to file a further amended and supplemental bill for the purpose of making an issue with the defendant Travers as to the right of the landlord to the fund in the hands of the mai-shal under and by virtue of the landlord’s lien for rent. This second amended and supplemental bill averred that Travers, on the 1st of April, 1875, accepted Hoover and Griffin as tenants ; that on the 12th February, 1877, the tenancy terminated by the action of the defendant Travers in seizing the stock of goods and taking possession of the premises under writs of attachnrent for rents sued out by Travers, and that from that day Travers was not entitled to any lien for rents accrued after that time, nor was he entitled to demand rent from Hoover after the 12th of February, 1877, and that he has no claim upon the fund in the hands of the marshal for rent's accrued after that day.
    It further averred that Travers on the 18th of December, 1876, filed a declaration against Hoover and Griffin, and caused a summons and attachment to be issued thereon, but, by his attorney, directed that the writ should not be served until the 12th of February, 1877, when service was made, and the action, therefore, w^s not, in legal contemplation; brought until this last day. That in in this action Travers sued for three months’ rent from August 1st, 1876; to December 1st, 1876, at the rate of $250 a month, upon which he claimed a balance of $575, and a judgment for that amount with costs was rendered in his favor on the law side of the court and judgment of condemnation entered ; and that he has been paid the same in full out of the proceeds of the sale of the goods ; that the landlord’s lien did not cover any. part of the time sued for, except from the 12th November, 1876, to the 1st December, 1876, a period of eighteen' days, which amounted to $150, and that the landlord was entitled only to a judgment of condemnation for the sum of $150. That on the 12th February, 1877, Travers brought a second suit for two months’ rent from December 1st, 1876, to February, 1877, and the attachment in this case was levied on the 12th February at the same time with the levy of the attachment in the first case, and in this second suit judgment of condemnation by default was rendered in favor of Travers for the said sum of $500, and that the said judgment had been fully paid to Travers out of the ¡proceeds of the said sale’ of goods. That on the 6th day of March, 1877, Travers brought a third suit against Hoover and Griffin for rent from February 1st, 1877, to March 1st, 1877, for $250, under which an attachment was levied on the fund in the hands of the marshal and a judgment of condemnation for that sum with interest and costs was also rendered, and that Travers claims the balance of the fund in the hands of the marshal to satisfy this third judgment. They averred that Travers has received out of the fund more than was covered by his lien, supposing him to have been entitled to a lien, and they claimed that he should be required to repay the excess beyond what he was entitled to receive, which was only for the part of'the three months before the 12th February, 1877, reaching back to November 12th,‘ 1876,. and covering only eighteen days up to the 1st of December, 1876 ; and that the whole fund remaining in the hands of the marshal' should be paid over to the plaintiffs.
    The decree passed in September, 1880, supported this view of the plaintiffs, and declared that Travers was only-entitled to have received from the marshal upon the first off his judgments the sum of $150 ; that the sum of $423.32 in excess of what he was entitled to have, which was paid to-him by the marshal should have been paid to the plaintiffs upon their judgment, and the defendant Travers was.ordered-to pay to the plaintiffs that sum with interest within thirty days from this date.
    From this decree Travers appealed.
    Mills Dean and S. S. Henkle for complainants.
    R. P. Jaokson for defendant Travers; and J. J. Johnson for defendant Hoover.
   Mr. Justice IIasnee,

after stating the case as above,, delivered the opinion of the court.

It is contended on the part of the plaintiffs that the order of the 29th of March, 1877, which directed that the first two judgments of condemnation should be paid to Travers,, was erroneous and should be reversed. No appeal was entered by Gibson from that order, and the marshal in obedience to-its direction paid over the money to Travers ; but it is nevertheless insisted that the decree of the 18th of September, 1880,: was a reversal of the previous order although passed three-years and a half thereafter. This last decree was passed upon the case presented by the second amended'and supplemental' bill which the court allowed to be filed “ simply for the purpose of making an issue with the defendant Travers as to the right of the landlord to fund in the hands of the marshal,, under and by virtue of the landlord’s lien for rent,” and was entered nearly a year after the money had been paid over by the marshal on the first two judgments to Travers.

The leave granted to file the last supplemental bill did not reserve the right to raise any question as to the order of the-29th of March, 1877, and in our opinion its propriety was not before the court in September, 1880.

. But if it had been, we think the order of March,.1877, was correct, and should have been sustained.

The right of a landlord to a preference claim upon- the goods of his tenant for rent has* been acknowledged for centuries by the law, and judges have always insisted that its existence was greatly for the interest of tenants, especially of the poorer class, as without such a right, landlords would -be averse to entrusting their property to the needy, who might actually be left without a shelter from the elements.

Chancellor Kent declares that the existence of this right inculcates frugality, industry and caution in tenants, and that the absence of some such provision would tend to check, the growth of cities. Hence this was constituted one of the few exceptional cases in which by the law a man was allowed to-be his own avenger, and by the hands of a bailiff of his own appointment, to seize and sell the chattels of the tenant found in the house.

By the Revised Statutes of the District it is provided :

“ Sec. 677. The power claimed and exercised as of common right by every landlord of seizing by his own authority the personal property of his tenant for rent arrear is abolished.”'
“ Sec. 678. The landlord shall have a tacit lien upon such of the tenant’s personal chattels, on the premises, as are subject to execution for debt, to commence with the tenancy and to-continue for three months after the rent is due, and until the termination of any action for such rent brought within the said three months.” The statute further provides that this, lien may be enforced by attachment, by judgment, or by actiou against the purchaser of the goods.

It is insisted upon the part of the plaintiff that the-recovery of their judgment and the return of nulla bona created a prior and inconsistent lien which should prevail in equity against the lien of the landlord in this case.

A.t the common law a landlord lost his lien upon the tenant’s goods after the sheriff' had levied upon them, for an execution took precedence of all debts except specific liens. Taylor’s Land, and Tenant, Sec. 598.

By the statute of VIII Anne, ch. 14, it was provided that “ after the 1st day of May, 1710, no goods or chattels, &c., lying or being upon any messuage, lands, &e., which are or shall be leased for life or' term of years, or otherwise, shall be liable to be taken on any execution on any pretence whatsoever, unless the party at whose suit the said execution issued out shall, before the removal of such goods off the premises by virtue of such execution, pay to the landlord of said-premises or his bailiff all such sums as shall be due for rent for the premises at the time of the taking such goods or chattels by virtue of such action, provided said arrears as do not amount to more than one year’s rent,” &e.

The statute vías always in force in Maryland. (See Washington vs. Williamson, 23 Md., 252). Andas itAvas in force there in February, 1801, it is the law of this District.

To compel the sheriff to pay over one year’s rent the landlord may move the court out of which the execution issues for an order to pay the amount due him from the sale, and this motion may be made at any time before the money is paid over, the sheriff being bound on receipt of a landlord’s notice to retain the money.

In Longstreth vs. Pennock, 20 Wallace, 576, On an appeal from Pennsylvania, where a similar statute is in force, it was decided that a landlord, having a right to distrain for rent in arrear, at the date of the issuing of the warrant in bank, ruptcy, was entitled to be paid in full by the assignee -of the bankrupt,, before the removal of the goods, one year’s rent, in preference to all other creditors.

The existence of this right inflicts no hardship upon the ordinary creditor. The rights of the landlord are regulated by law, and all dealing with the tenant must be supposed to have understood them. His lien is a preference by common right, where not given by statute. His right begins with the lien which can only be acquired by others, as the result of a judgment. The landlord trusts the tenant with his property upon the faith of this privilege.- As the statute makes the rent a valid charge prior to the right of execution creditors, it necessarily lifts up the lien of the rent above any lien of -other creditors. Hence, if there had been a levy under the plaintiff’s judgment, instead of a return of nulla bona and a bale by the marshal under that levy, we hold that the marshal, after notice duly given to him by the landlord, would have been obliged to pay from the proceeds all rent due for a period not exceeding one year, up to the time of the sale, and that if the sale took place during the month, there would have been no division of the rent for that month. See Joyce vs. Wilkenning, 1 Mac Arthur, 567.

In Morgan vs. Campbell, 22 Wallace, 38, the Supreme •Court construed a provision of a statute of Illinois which •declared “ every landlord shall have a lien upon the crops growing or grown upon the demised premises in-any year for rent that shall accrue for such year.” After stating the probable reason for the enactment of the law, they say, “be this as it may, the statute does in express terms confer a lien upon the crops growing or grown upon the demised premises in any year for the rent of that year, and recognizes for •other personal property in the county the right of distress •as-it existed at common law. At common law the landlord could distrain any goods found upon the premises at the time of the taking, but he had no lien until he had made his right active by actual seizure. A statutory lien implies •security upon the thing, before the warrant to seize it is levied. It ties itself to the property from the time it attaches to it, and the levy and sale of the property are only means of enforcing it. In other words, if the lien is given by statute, proceedings are not necessary to fix the status of the property. But in the absence of this statutory lien, it is necessary to take proceedings to acquire a lien upon the property of the tenant for the benefit of the landlord. This the landlord is enabled to do in a summary way to satisfy the rent which is due him, and in this he has an advantage as creditor over creditors at large of the- tenant.”

Nor do we think the lien of the landlord v'as lost or impaired by the order of his attorney to suspend a sale under the attachment. Whether such an order in other cases might have had the effect contended for by the plaintiff’s,we do not think it could have impaired the statutory lien which already existed before the declaration in the case was filed, and the landlord’s forbearance to enforce his right for a month would not have had the effect to destroy the lien»

In Walker vs. Barton, 2 Br. Reports, 365, it was decided that the landlord’s lien is not waived by an. agreement to forbear to distrain upon condition that the property shall remain on the premises.

We think, therefore, that the order of the 29th of March, 1877, even if it were examinable now, should be sustained •as being based upon correct principles.

The remaining question is as to the disposition of the-money in court amounting to $318.84.

The third attachment was issued on the 6th day of March, 1877, and on the 9th it was laid on the goods then in the custody of the marshal on the premises under the previous attachment.

On' the 20th the goods were sold by the marshal. It is insisted-by the plaintiffs that the landlord had no right'to seize, under this attachment, goods already in the custody of the law, and that the attempted levy under the third attachment was, therefore, void. But, in our opinion, when this attachment was issued the landlord had a statutory lien upon the goods then on the premises and the circumstance that they were then in the custody of the marshal could not destroy his lien.

In the case of Holdane vs. Sumner, 15 Wallace, 605, the supreme court had occasion to construe the provision of the code.of Louisiana, regulating the right of-the landlord to-recover rent.

According to that code the landlord has, for the payment of his rent, a right of pledge on the movable effects of the lessee found on the property leased, and may seize them within fifteen days after their removal from the property by the lessee. In the particular case, the tenant, a corporation, undertook, in supposed pursuance of the insolvency act, to make a eessio honor urn for the benefit of its creditors-generally, and the appropriate court accepted the cession. and directed that all judicial proceedings against the property be stayed ; and the syndic took possession of the goods and sold them. It was afterwards decided by the appellate court of the State that a corporation was not included in the expression “ any person in the insolvency act,” and was not, therefore, entitled to make a eessio honorum ; and the order staying proceedings against the property in the hands of the syndic was therefore vacated. But it was held that, notwithstanding the decree of the court, which stayed proceedings on the part of the landlord to follow the goods and make his rent, was void, still his lien remained.

The Supreme Court says: “ But- when the goods are in custodia legis, as where they are seized by a sheriff under an execution, or are placed in the hands of a syndic under a eessio honorum, the lessor cannot exercise this power of seizure and does not lose his privilege by not exercising it, but said privilege attaches to the proceeds of the property in the officer’s hands.”

By the provisions of section 678 of the Eevised Statutes of the District, the tacit lien of the landlord “ shall continue for three months after the rent is due and until the termination of any action for such rent brought within the said three months.”

His lien for the months of January and February, 1877, undoubtedly existed on the 6th of March, when the declaration was filed, and continued until the termination of those proceedings, and was not destroyed by the fact that the goods which the law had said should be subject to his lien, were at the time of issuing the attachment in the custody of the law.

~We are, therefore, of opinion that the, rent for those two months should be paid to the landlord out of the fund in the marshal’s hands. The residue is to be paid over by the marshal to the plaintiffs upon their judgment.  