
    APPEAL OF THE FARMERS’ BANK OF SCHUYLKILL CO.
    Where a landlord has a lien for coal rent upon the proceeds of loose personal property and also upon the proceeds of the leasehold estate and fixtures ; he will be thrown upon the latter fund for payment, so as to give laborers, &c., an opportunity for payment out of the former fund, even as against a, coal lease . mortgagee.
    The landlords’ lien upon the proceeds of the leasehold estate and fixtures is not restricted to one month’s rent, but is so restricted upon the proceeds of loose personal property.
    A laborer who hauls coal to the wharf two miles from the mine, and the clerk who is stationed at the wharf have a lien upon their wages.
    Appeals from the decree of the Court of Common Pleas of Schuylkill County distributing the money arising from the sale of the property of George Mason and George H. James. No. 12 January Term, 1862.
    The fund arises from the sale of Mason and James’ property under the following executions: The Farmers’ Bank of Schuylkill County vs. Geo. Mason and Geo. H. James, Fi, Fa., No. 181 March Term, 1860, debt $8,000 ; James H. McKee to use ot Henry Saylor vs. Geo. Mason, Fi. Fa., No. 182 March Term, 1860, debt $3,000 ; Henry Shelly vs. Geo. H. Jambs, Fi. Fa., No. 186 March Term, 1860, debt, $336.92. In 1855 George Mason was engaged in mining and shipping coal from the “Flowery Field Tract” under a lease dated January 23, 1851, and having five years to run, and also from part of the adjoining tract known as the “Oak Hill Tract,” under lease of January 2, 1854, the coal being taken through the Flowery Field tract, and also from the land of Miller Patterson and others from part of Oak Hill tract. The breaker and improvements were on the Flowery Field, but nearly all the coal was taken from the Oak Hill at the time of the sale. There was $39.96 due as coal rent from the Flowery Field and $560.25 for right of way for coal mined from the Oak Hill.
    On. July 24ch, 1855, George Mason executed a coal lease mortgage, recorded on same day, to James McKee for $3,000 on the two coal leases and the improvements, machinery and fixtures. The lease to Mason for the “Flowery Field,” having expired in 1856, the owners made a lease to James McKee on June 26, 1856, who assigned to Mason and James.
    On November 10, 1858, Mason and James executed a coal lease mortgage, which was duly recorded within a year to the Farmers’ Bank of Schuylkill County for $8,000, to secure present and future indebtedness. The bonds secured by these mortgages were entered in 1860 and executions issued thereon on January 25,1860. After the levy the landlords claim for rent and miners’ and laborers’ claim for wages were presented. The lease on the “Flowery Field” was sold for $301.00, lease on the “Oak Hill” for $105.00, lease from Miller and Patterson for $110.00, steam engine, breaker and fixtures $2,010.00, loose personal property $784 10. Total $3,310.10. The auditor awarded $600.21 to the landowners, $201.34 to the mechanics and $1,974.92 to the laborers, being the full amounts due on the several claims, and the balance to the Farmers’ Bank. ■ The report was referred back to the auditor and he modified his report giving the miners and laborers the proceeds of the sale of the personal property (less the proportion of costs of audit) amounting to $742.10. After exceptions filed and argument the Court, on August 5¿1861, made the decree and distribution as set forth in the following opinion by
    Hegins, P. J.
    1st. — The sum .of $742.10, the net proceeds of the personal goods and chattels is appropriated pro rata, to the payment of the miners, laborers, &c., in accordance with the report of the auditor.
    It is true that the landlord has a lien upon this fund superior to that of the miners, laborers, &c., but as he has also a lien upon the proceeds of.the sale of the chattels, real or leasehold' estate, granted by two of the leases, prior to the lien of the mortgage of these estates, together with their fixtures, he is thrown, according to equity, upon the latter fund for payment.
    We overrule the exception to the payment of John Pounder, who hauled the coal to the wharf at Mt. Carbon, and also the exceptions to the claims of ■ Bidgway and Bosbyshell, who shipped the coal for the defendants at that point. They are certainly comprehended in the tercas of the a'ct, “miner, mechanic, laborer, or clerk” employed in and’ about such business of the defendants. He is as much a laborer who hauls the coal to the wharf, two miles away from the breaker, as he who hauls it from the pit’s mouth, one hundred yards to the breaker, whether he uses his own or the horses of his employer, and whether he includes the labor of the horses in the charge of his own labor or not. There is no difference whether the clerk sits and performs his services in the office at the breaker or two miles off at the wharf, he is still a clerk employed “in the mining of coal.” The shipping of coal to the consignee is part of “such business as aforesaid,” whether by railroad from the breaker, or by canal from the wharf.
    2nd. — The fund arising from the sale of the leases and fixtures is appropriafed first to the payment of the rent, $600.21, secondly, to the balance of the mechanics’ lien of Wm. Wren, $201.31, and the residue of the fund to the mortgage of the Farmers’ Bank of Schuylkill County.
    The 3rd section of the act of 30th March, 1859, enacts that the lien of the landlord “shall be, and is hereby restricted to one month’s rent, due, together with any fraction of a month’s rent, accruing immediately prior to the time of taking such property in execution or levy under such landlord’s warrant, or other levy.” This language of the section is plain and explicit, and leaves no room for doubt. When the landlord obtains judgment and execution for his rent, though it has been accruing for years, it “ranks according to priority, and is paid as other executions.” But where he relies upon his statutory lien for the recovery of his rent out of the proceeds of the property liable to distress, by a sale on a landlord’s warrant, execution, or other writ for the sale of the property, he is restricted to the rent due for the month and the fraction of the month previous to the levy, not only against miners, &c., but other lien and execution creditors. This restriction is clearly within the constitutional powers of the Legislature. It operates prospectively upon after accruing rents, as in this case, and does not impair the contract of lease, but only the lien and remedy for the recovery of the rent.
    The restriction, however, applies only to “the property liable to 'distress of the landlord,” and the proceeds of this personal property we have appropriated to the wages of the miners, &c., for the reason already stated. But according to the decision in Wood’s Appeal, and other cases, the landlord is entitled to the proceeds of the sale of the leasehold estate and fixtures on the premises without the restriction contained in the 3rd section of the act of 30th March, 1859, above referred to. We, therefore, decree the payment of the rent, which does not exceed one year’s, out of the fund, in preference to the mortgage of the coal leases.
    The mortgage of the coal leases by the defendants to the Bank was to secure the debt then due, and any sum that might thereafter become due by the mortgagors or either of them. A mortgage of the fee simple for a similar purpose has been held by the Courts to be good and valid, and a priori the mortgage of a less estate should be. The description of the objects intended to be embraced in the mortgage, is sufficiently definite and accurate to-ascertain them with certainty, nor, indeed, is there any dispute as to their identity.
    'The act of the 5th of April, 1853, authorizing the mortgage of coal leases, machinery and fixtures, (Famph. L., 295,) provides that the same shall not be valid against creditors, mortgagees, or. purchasers, “unless within the term of one year, a true copy -of the- said mortgage, together with a statement, exhibiting the interest of the mortgagee in the property, “shall be filed in the office.” This provision was complied with by the Bank, and the only question is whether the statement is sufficient and according to the act.
    The statement is that “there is now due on said coal lease mortgage $8,000, with interest from the date of said mortgage, as a security for the payment of all moneys due or to become due from said Mason & James or either of them to the said Bank.” The interest of the Bank in the property was certainly equal to the amount of the mortgage and interest. On the 1st day of November, 1859, when the statement was filed, there was due by the mortgagors to the Bank $2,145.16, and the Bank held two notes, endorsed by Mason, one.'of the mortgagors, amounting to $6,254.80 These notes were renewals of notes which had previously fallen due, and which Mason -was liable to pay to the Bank. The statement was then not only true, but was a literal compliance with the statute. The Bank had an interest in the property to the-amount of $2,145.16 then presently payable, and to the further amount of $6,254.80, making together $8,499.96.
    The mechanics’ lien was prior in date to the mortgage to the Bank, and has, of course, a preference upon the fund.
    With the exceptions indicated, the report of the auditor is confirmed.
    
      The Farmers’ Bank appealed and assigned for error.
    1st. — The Court erred in postponing the claim of the rent to the claims for labor, the loose personal property about the colliery being the first fund out of which the rent due should have been paid.
    2nd. — The Court erred in decreeing payment of the whole amount of the claim for rent out of the proceeds of sale, the amount for which the proceeds of sale was liable being only on the month and fraction of a month immediately preceding the levy and date, amounting to $198.00.
    3rd. — The Court erred in decreeing distribution of the proceeds of the loose personal property to the miners, &c., in preference to the executions, disregarding the claim of the appellants that the workmen upon the Oak Hill tract were not entitled to come upon the fund from the sale ot property on the Flowery Field Tract and vice versa.
    
    4th. — That after the payment of the mechanics’ lien and the month and fraction of a month’s rent to the landlord, the whole of the balance should have been distributed to the mortgage and execution creditors.
    
      D. B. Green and J. W. Roseberry, Esqs., for appellant argued.
    The coal lease mortgage is entered prior to the passage of the act of March 30, 1859, P. Laws 318, and therefore has priority over the claims of miners, mechanics and laborers. Wade’s Appeal 5 Casey, 328, Wood’s Appeal 6 Casey, 277, Johnston’s Estate 9 Casey, 511, Vastine’s Appeal 2 Wright, 164.
    By the third section of act of 1858 the landlords’ lien is limited 'to one month’s rent instead of a year’s rent. The act is constitutional for the Legislature may alter, modify or take away remedies for recovery of debts. Evans vs. Montgomery, 4 W. & S., 218. Hepburn vs. Curts 7, W. 301, Chadwick vs. Moore, 8 W. & S. 49.
    That the restriction as to one month’s rent is as to the proceeds ■of all property liable to distress by the landlord and by the lease, the machinery and engines, &c., were liable to distress, which would leave $301, as the proceeds of property not liable to distress.
    The landlords’ claim for rent out. of this $301 would depend upon the fact whether, or not their right to forfeit the lease and to re-enter for non-payment of rent prior to the Sheriff’s sale was divested. Wood’s Appeal 6, Casey 277, Spangler’s Appeal Ibid. By the lease a Sheriff’s sale cannot make a transfer of the lease without the consent of the landlords, and therefore their right re-enter was not divested. In the case of Patterson vs. Silliman 4, Casey 315, the point was only collaterally raised.
    The property sold was mostly in the “Flowery Field Tract,” while che labor was principally done on the adjoining tract. The labor claims must be confined to the property on the tract in which the labor was performed.
    
      B. W. Cummings, Esq., for the landlords argued.
    The Coal Lease Mortgage Act of April 5, 1853, P. Laws, 295, expressly provides, “That this act shall not interfere with the rights of the owners of the fee simple to recover the amount of rent due.” Therefore if their right to re-enter has been taken away their right to the proceeds of the sale is superior to the coal lease mortgage. The rent accruing after the mortgage has priority over it. Bantleon vs. Smith 2, Binney 146.
    The sale is of a part of the landlords’ right as well as of the tenants. Wood’s Appeal 6, Casey 279. The act of March 30, 1859, restricting the landlord’s lien to one month’s rent from the proceeds of property liable to distress, means- property liable to-distress by law and does not apply to the proceeds of the machinery and fixtures which were distrainable by the agreement of the parties.
    The landlords had accepted the purchaser as their tenant and. had received rent and consequently their right to re-enter for the prior default was gone, and their right to claim the fund complete.
    The argument that to restrict the lien of the landlords to a certain amount acts only on the remedy for the collection of the rent, and not in the rent itself cannot be sustained.
    
      Geo. de B. Keim, Thomas H. Walker and F. W. Hughes, Esqs. for labor claimants
    cited act of March 30, 1859, P. Laws 318,and argued that the labor claims were entitled to priority over the coal lease mortgages.
   The Supreme Court affirmed the decree of the Court below on March 3rd, 1862, in the following opinion:

Per Curiam.

After a careful consideration of the argument made in this case we are not convinced that any of the errors assigned are well founded.

And it seems to us that the opinion of the learned President of the Common Pleas is a sufficient justification of his decree.

Decree affirmed at the costs of thé Appellant.  