
    Meter, Weis & Co. v. Oliver & Griggs.
    (Case No. 4916.)
    1. Enforcement of landlord’s lien.— The tenant whose goods are seized by process of attachment, and which remain in the rented premises until their sale under such process, is liable for rent during the entire period of occupancy. The goods, while in custody of the law, are not subject to seizure for rent under a distress warrant; but immediately upon a sale of them being made by the officer having them in custody, the landlord’s lieu can be-enforced by their seizure in the store and sale for all rents due. If the landlord sells the premises after the goods are attached, he has the like remedy for the collection of rents which were due before bis sale, which lie may enforce against the goods, in the hands of the purchaser of the goods, remaining in the store after their sale under attachment.
    Error from Limestone. Tried below before the Hon. L. D. Bradley.
    Suit for trial of the right of property between Oliver & Griggs, appellees, and Meyer, Weis & Co., claimants, and R. T. Mosely and S. Pulver, the sureties upon their claim bond. Oliver & Griggs, plaintiffs below, on the 1st day of January, 1881, rented to one Sol Weis, a store, described in appellees’ tender of issues, in the town of Mexia, Limestone county. Weis went into possession on that day, agreeing to pay monthly the reasonable rental value thereof, and so. remained in possession until December 28, 1881, upon which date the United States marshal, by authority of certain writs of attachment issued out of the United States circuit court at Waco, against the tenant Weis, levied upon all the property, consisting of a stqck of general merchandise, contained in the store, and took exclusive possession thereof, as well as of the store itself, and so held the same until February 6th thereafter. February 6fch and 9th the marshal regularly and legally sold the property so levied upon by him, and they were all purchased by Meyer, Weis & Co., the claimants and defendants in the lower court, and one of the appellants.
    February 4, 1882, appellees sued out a distress warrant before a justice, returnable to Limestone district court, against the tenant Sol Weis, to enforce the collection of rent for the entire period that the store was alleged to have been occupied by him, and on the 9th of February, after the purchase by Meyer, Weis & Go., this warrant was levied upon the goods here in controversy, the goods so seized being a portion of the goods purchased by Meyer, Weis & Co. at the marshal’s sale, and which were, at the time of the levy of the warrant, in their possession, but still in the store formerly occupied by said Sol Weis.
    February 1, 1882, before the sales, and before the distress warrant was sued out, appellees sold the store to Prendergast & Co., who thereupon rented the same to the marshal, and received the rents for the time the store was occupied by him after their purchase. The property seized under the distress warrant ivas valued at $1,200.
    Judgment rendered for defendants in error for $1,022.66, and ten per cent, damages, $102.66 — $1,125.32.
    Plaintiffs in error assigned and relied upon the following points:
    1st. That as the tenant had ceased to occupy the premises for more than one month before the distress warrant issued, the lien and remedy were lost.
    2d. That Oliver & Griggs having conveyed the premises before the writ issued, the lien and remedy had ceased to exist.
    3d. Defendants in error having failed to secure an adjudication of their rights in the federal court, could not now maintain the suit and foreclose the lien.
    
      Alexander & Winter, for plaintiffs in error, cited:
    R. S., art. 3112, 3122; Lee v. Phelps, 54 Tex., 368; Horan v. Frank, 51 Tex., 405 ; Const., art. 14, sec. 37; Freeman v. Howe, 24 How., 460; Howard ■y. Seldon, 5 Fed. Rep., 472,
    
      Thomas J. Gibson, for defendant in error, cited:
    Drake on Attach» (3d ed.), § 200; Taylor on Landlord and Tenant (5th ed.), 473; Pasch. Dig., 7418c; Rosenberg v. Shaper, 51 Tex., 134; R. S., 3107 3122a, 31225.
   Watts, J. Com. Apr.—

It is claimed that Weis’ occupancy of the store-house ceased on the day the marshal levied the attachment upon the property. This proposition is not maintainable. The marshal had no further right to the occupancy of the house than was necessary to enable him to complete the levy and remove the property. As Weis did not terminate the renting by notice to his landlords, the court correctly held that, in contemplation of law, the occupancy of the marshal was the occupancy of the tenant. So long as the goods were in the possession of the marshal they were not subject to seizure for rent, but when no longer in custodia legis they were subject to distraint, provided the preference lien continued in force, and the rights of innocent third parties had not interposed.

In this case we think it clear that the lien was in full force at the time the distress warrant was levied. All parties had full notice of the existence of the lien. The property remained upon the rented premises, and the fact that Oliver & Griggs conveyed these premises before the issuance of the distress warrant does not affect their rights and remedies given by statute for rents that had accrued prior to such conveyance.

The statute giving the remedy must be liberally construed, with a view to effect its object and to promote justice. However^ to hold that notwithstanding the lien subsisted for one month after the occupancy had ceased, but that because the relation of landlord and tenant had ceased, or the landlord had conveyed the premises, the remedy for enforcing the lien was gone, would result in defeating the object had in view in giving the lien.

The remedy by distraint under the statute is not dependent upon the ownership of the premises at the time the writ is issued, nor is it in any way affected by the fact that the relation of landlord and tenant has then ceased. If rent is due and the lien subsists, the statute authorizes the issuance of a distress warrant to enforce the lien and secure the debt.

Oliver & Griggs were not compelled to resort to the federal court to have their rights adjudicated; they were not parties to the suit there pending, and their right to subject the property to their claim for rent was not affected by the proceedings had in that cause. Plaintiffs in error purchased the goods with notice of, and therefore subject to, that lien.

•Our conclusion is that there is no error in the judgment, and that it ought to be affirmed.

Affirmed.

[Report adopted May 16, 1884.]  