Thomson v. Baltimore & Susquehanna Steam Co. , 33 Md. 312 ( 1870 )

Alvey, J.,

delivered the opinion of the Court.

This is a special action on the case against a sheriff for seizing and selling the goods and chattels of a tenant under and by virtue of an attachment on warrant, and the order of the Court thereon, without paying the arrears of rent due the landlord, after due notice given under the Statute of 8 Anne, chapter 14, section 1. And the first and most material question is, can the action be maintained ?

' It is contended, on the part of the defendant, that the action does not lie against him, because the attachment proceeding under which he acted is not embraced or contemplated by the Statute on which the action is founded; that an attachment on warrant is not an execution within the meaning of the Statute of Anne.

The Statute referred to is entitled, “ an act for the better security of rents,” &c., and provides “ that no goods or chattels whatsoever, lying or being in or upon any messuage, lands, or tenements which are or shall be leased for life or lives, terms of years, at will or otherwise, shall be liable to be taken by virtue of any execution on any pretence whatsoever, unless the party at whose suit the said execution is sued out, shall, before the removal of such goods from off the premises, by virtue of such execution or extent, pay to the landlord of the said premises, or his bailiff, all such sum or sums of money as are or shall be due for rent for the said premises at the time of the taking such goods or chattels by virtue of such execution;” and if more than one year’s rent is due, “ then the said party, at whose suit such execution is sued out, paying the said landlord, or his bailiff, one year’s rent, may proceed to execute his judgment as he might have done before the making of this act; and the sheriff or other officer is empowered and required to levy and pay to the plaintiff as well the money so paid for rent, as the execution money.”

It is not difficult to perceive that the provisions of this Statute are such as cannot well be adapted to the course of proceedings on attachment. The seizure of property under an attachment is not by way of execution, in the ordinary sense of that term, but is simply in execution of a power delegated to the officer to impound such property of the debtor as may be required to answer the demand of the creditor, to be subject to the judgment of condemnation of the Court issuing the process. If the debt or demand upon which the attachment is founded be not sustained, of course, no judgment of condemnation is rendered, and the property is released and again restored to the possession of its owner. The sheriff, upon laying the attachment, has no power to sell the property seized, unless it be by the express order of the Court; and if the arrears of rent were required to be paid as a condition to rendering the property subject to the attachment, the sheriff, not being authorized to sell under the process in his hands, could not levy and pay to the plaintiff “ as well the money so paid for rent, as the execution money,” as required by the Statute; and, consequently, the plaintiff would be deprived of the means provided for re-imbursing him the money paid to the landlord.

In the case of Fisher vs. Johnson, 6 Gill, 354, it was decided by the late Chief Justice Lb Gkakd, then an associate Judge of the Baltimore County Court, that an attachment on warrant was not an execution within the meaning of the Statute of Anne; and upon appeal, while the question does not appear to have been considered by the Court of Appeals, it was expressly conceded and asserted by counsel on both sides, that such an attachment could not be considered an execution; and of the correctness of that proposition we think there can be no doubt. Indeed, an attachment has but few of the attributes of an execution; the execution contemplated by the Statute being the judicial process for obtaining the debt or damages recovered by judgment, and final in its character, while the attachment is but mesne process, liable at any time to be dissolved, and the judgment upon which may or may not effect the property seized.

Bor do we concur in the position of the plaintiff in this case, that the sale of the property seized by the sheriff, under the order of the Court, rendered the officer liable to this action under the Statute, as if the goods were seized and removed under an execution. The order of Court was authorized simply as a means of preserving perishable property from loss pending the attachment, and the sheriff was bound to execute it, and he is not liable to any one for so doing. The order, having been made by competent authority, afforded full justification to the sheriff for making the sale. The proceeds of sale remained subject to the final judgment of the Court; and all persons having superior claims to the property to that given the plaintiff in the attachment to render such property specifically liable for his debt, with knowledge of the pendency of the attachment proceeding, were bound to come in and assert their claim before condemnation; for the sheriff can neither be held liable for selling the property before judgment of condemnation under an order of Court, nor after such judgment, under a fi. fa. issued thereon. Trieber vs. Blocher, 10 Md., 14. And in a case like the present, although the officer be not liable as for seizing and removing the goods of a tenant under an execution, to the prejudice of the landlord’s claim for rent, yet, by analogy to eases that have been decided to be within the equity of the Statute, we think the landlord is not without remedy. After the seizure of goods under an attachment and before sale, they are in the custody of the law, and, consequently, cannot be distrained, because the party distraining cannot legally take them into his own possession. But still, the landlord has a quasi lien on the goods of his tenant subject to distress, even before distress levied, for arrearages of rent; (Henchett vs. Kimpson, 2 Wils., 140; Dixon vs. Smith, 1 Swanst., 457 ;) and as the seizure and condemnation under the attachment may deprive the landlord of his remedy by distress, if there be not sufficient goods left remaining to satisfy his demand, he should be allowed to come in and claim for such an amount of rent in arrear as he could have legally demanded if the goods had been taken on execution. Such demand, if properly established, will take precedence of the debt or claim for which the attachment issued, and, out of the proceeds of the property condemned, will be entitled to be first paid. This mode of proceeding is analagous to that allowed in cases of executions levied, where the landlord, instead of suing the sheriff, is awarded his claim for rent out of the money realized on the execution by motion in Court. 2 Tidd’s Prac., 1016; Henchett vs. Kimpson, 2 Wils., 140; Washington vs. Williamson, 23 Md., 244.

(Decided 2d December, 1870.)

It results from the view that we have taken of this case, that the action is not maintainable, and consequently the judgment on the appeal of the defendant below will be reversed, and judgment entered for him; and as to the appeal of the plaintiff below, that will be dismissed.

Judgment reversed, and judgment for the defendant below; and, appeal of plaintiff below dismissed.