Powell v. Daily , 61 Ill. App. 552 ( 1895 )

Mr. Justice Lacey

delivebed the opinion of the Coubt.

The question presented here is, whether, under the lease executed to the appellant, and his rights as a landlord, and his action in levying his distress warrant, he has any claim. to a lien on the .goods of the assignor in the hands of the as signee.

It is insisted by the appellant, through his counsel, first, that the assignee is a volunteer and takes the property subject to all liens, legal or equitable, perfect or imperfect, and that he stands in the shoes of the assignor as to such liens; second, that the lease gave the appellant a lien upon all the property of the lessor as security for the payment of the rents, whether the same is exempt by law or not; and third, that if it should be held that the lease was inoperative to create a lien upon- the goods in question, still, at common law, and by virtue of our statute, the- landlord had a right to seize them in the hand of the assignee, and could take the same for the payment of his-rent, as provided by law.

We have no doubt of the correctness of the proposition contained in the first point, of the insistence of the appellant. The assignee undoubtedly stands in the same position as to liens that the assignor stood in at the time of the assignment, except in cases where for some reasons they have been lost or forfeited. Trust Co. v. Trumbull, 137 Ill. 180; Hoven et al. v. Burbett, 153 Ill. 672.

As to the proposition made in the second point, we are inclined to think the appellant is in error, especially as to the property contained in the deed of assignment. The words contained in the lease are ineffectual to create a lien on after-acquired property. Borden v. Croak, 131 Ill. 70; First National Bank of Joliet, Ill., v. Adams et al., 138 Ill. 499.

In the case at bar there is no proof that the goods assigned, or any of them, belonged to the lessee at the time the lease was executed, and it devolved upon appellant to make such showing before he could establish a lien under the lease also. Borden v. Croak, supra, and 33 App. C. R. 392, same case.

We are clearly of the opinion, then, that the lease gave the appellant no lien as mortgagee on the after-acquired goods of the assignor; whether it was effectual to create a lien on the goods then owned by the lessee, we need not decide, as the question is not presented on this record.

The point is also made in the second proposition, that the lessee had waived his exemption by the lease. In answer we will say that we do not think that this point is well taken. A debtor can not waive his right of exemption given him by the statute, by an executory contract. It is clearly against the public policy and would defeat the statute in numerous cases, in its munificent intentions. Rich v. Kelley, 82 Ill. 147. And we do not think it was necessary for the assignor to claim and take. his exemptions in specie; he might waive that and take it in money, which was allowed him by the County Court.

It remains, then, to consider the third proposition, whether the appellant could claim any preference by virtue of his being the landlord, under the laws of this State applicable to landlords and tenants. We are of the opinion that the appellant had no lien as a landlord under his lease in question on the goods in controversy,' either under the common law, or under our statute.

That question we think was finally put to rest by the Supreme Court, in Herrin v. Gill, 112 Ill. 251. It is said in the above case: “ A lien is given by the statute to the landlord on crops growing or grown upon the demised premises in any year, for the rent that shall accrue during such year, but no specific lien is created or given as to any other property of the defendant. At common law, before the adoption of the statute of 8th Anne, C. 14, the landlord had no lien of any kind, but only a right to distrain.”

“ At common law an execution levied upon goods of a defendant, even where rent was due, took precedence of a distress warrant subsequently issued and the officer had a reasonable time in which to remove them.”

“ The statute of Anne, giving the landlord such a lien, is not in force in this State, being a date later than of the fourth year of James I.”

This same doctrine was followed and announced in case of the First National Bank of Joliet v. Adams et al., supra, wherein the Supreme Court say:

“ Independently of the lease a landlord in this State has no common law lien upon the property of his tenant for rent and he has only statutory lien as to growing crops.”

In view of these recent decisions, where it is broadly laid down that a landlord has no lien upon the goods of his tenant, except that given by a statute, we need not trouble ourselves over the abstruse reasoning of common law judges on the subject. It is claimed that the foundation of the rule that a landlord has a lien on goods on the premises of the tenant, as was said by Lord Mansfield in William v. Seper, 3 Burr, 1886, was “ that the goods remaining on the premises to which the landlord has the right of entry is equivalent to a pledge in possession.” This seems to be a subtle sort of reasoning for the purpose of giving the landlord a lien and a right to distrain. As a matter of fact, the landlord has no possession of the leased premises or the personal property situated thereon until he actually enters, consequently he would have no possession of the personal property until he made his distraint, which could not, according to the ordinary rules of law, be a pledge in possession. It will be remembered that Lord Mansfield is the judge who is said to have boasted that he had made more law in England than king, lords and commons.

According to the rules of the common law the landlord could only distrain the goods found on the lessee’s premises and even might take the property of a stranger, if he found it there; the latter rule being most absurd. Our statute has changed that rule, and allows the landlord to seize any of the personal property of his tenant that may be found in the county where the tenant resides, and in no case shall the property of any other person, although the same may be found on the premises, be liable for seizure for rent due from such tenant. The statute enlarges the right'of the landlord to make the distraint anywhere in the county, but takes away his right to collect his rent from a stranger. According to the spirit and intention of those decisions of the Supreme Court above quoted, we think it obvious that the rule of law established in this State is that the landlord has no lien on the property of his tenant under his lease other than is given by the statute, and that he has no greater lien on the goods found on the tenant’s premises than if they were found in any other part of the county; and that the only lien he has, or can have, except as to growing crops on the demised premises, is created for the first time when the landlord’s warrant is levied and the goods taken into possession by the bailiff. It stands on the same footing as a writ of attachment.

We are of the opinion also, that the lease in this case, giving the right to distrain, gave no greater or more extensive powers than is given by the statute. According to the provisions of our statute the levying a landlord’s warrant is the commencement of a suit at law, and the Circuit Court must take jurisdiction of it and carry it through as other cases, the landlord’s bailiff holding the possession of the property in the meantime. Our insolvent debtor’s act is intended to effectuate and make an equal distribution of a debtor’s property, and as soon as the assignee is appointed and takes possession, or has a right to take possession, the whole administration of the estate goes into the County Court. That court has full and complete jurisdiction to administer the estate to the exclusion and against the interference of any other person ■ or other court. It would follow then that no execution, issued from another court, could be levied upon the assignee’s property, and take it out of the jurisdiction of the County Court and from the assignee. This has often been held by the Supreme Court. A landlord’s warrant would have no greater force than a writ of attachment or an execution, and although the landlord had a right to issue his warrant before the goods come under the jurisdiction of the County Court, he would have no right afterward to do so, and thus deprivó that court of its jurisdiction.

It is partially conceded in this case, that the levy of the landlord’s warrant on the goods of the assignor after the assignment was perfected is necessary to complete the landlord’s lien to the goods in the hands of the assignee, and we agree that a levy of a landlord’s warrant on goods where no lien is given by statute is necessary to create the lien in this as in all other cases.

As we have seen, the landlord had no right in law to dis-train the goods after they came to the hands of the assignee, under the assignment and the agreement with the assignee to allow him to release his proposed seizure under his landlord’s warrant, and to claim his lien in the County Court gave him no greater rights than he had before the issuing of the warrant. It follows then that the appellant had no lien on the insolvent debtor’s goods and that the decision of the County Court was correct. The decree and order of the County Court is therefore affirmed.