Horton v. Heath ( 1881 )

Opinion.

Cooper, J.:

Mrs. Devaney, by her agent, sued out an attachment for rent against her tenant, Joseph Matthews, which was executed by Heath, the officer, by the seizure of certain agricultural products. Anderson Horton, who produced the crop on the demised premises under a contract with the tenant by which he was to have one-half of all the crops raised, made affidavit of his interest in the same before a magistrate, who issued a-writ of seizure directing the property in the hands of Heath to be seized under the provisions of the Act of April 17, 1876, in reference to agricultural liens.

A motion was made and sustained by the justice of the peace to dismiss Horton’s proceedings, and on appeal to the Circuit Court, the motion was renewed and again sustained, and Horton appeals to this court.

It is here urged on behalf of appellant that the lien conferred upon the laborer by the Act of 1876 being purely statutory and a statutory remedy being also provided for its enforcement, the remedy is exclusive of all others, and to deny the right of the laborer to proceed under the provisions of the statute, is in effect to deny him all remedy to enforce his rights. In this we cannot concur. Chapter 21 of the Code of 1871, in relation to landlord and tenant,'provides a statutory remedy for the enforcement of the landlord for rent. It declares what property shall not be liable to seizure even though the same be upon the demised premises, but limits the procedure by which a stranger to the writ may recover possession of property wrongfully taken by the officer under the distress warrant. It is by section 1631 expressly stated that “no person claiming title to such property distrained for rent shall in any manner avail himself of this article unless by a writ to replevin,” etc. It is true that in no other case than one in which the property subject to the laborer’s lien has been seized by an officer under a distress warrant, can the laborer enforce his lien in any other manner than that pointed out by the statute by which it is conferred, but he cannot by that means enforce it where the property has been seized under an attachment' for rent because of the positive prohibition of the Code above referred to; and having the right, with a positive prohibition of any other remedy to enforce it than that pointed out, he was entitled to avail himself of it. The common law right of the landlord to seize any property found upon the demised premises is by our statutes restricted so that he may only seize and sell the property of the tenant or his interest in the property. Any one claiming either title absolutely in the property seized, or such interest as shows that the property in whole or in part is not subject to distress and sale is entitled to replevy the property, but must proceed in accordance with the provisions of the Code.