Gibson v. Lock , 58 Miss. 298 ( 1880 )

George, J.,

delivered the opinion of the court.

Lock & Smith sued out a distress for rent against L. Z. Gibson, their tenant, and the same was levied on some personal property on the demised premises. The sheriff demanded an indemnifying bond from Lock & Smith, which was given. The property was sold by the sheriff, and the proceeds applied to the payment of the rent. The plaintiff in error, the wife of said tenant, brought this action on the indemnifying bond, claiming that she was the owner of the property thus seized and sold, 'and seeking a recovery of its value. A demurrer was sustained to the declaration, and we think properly. At common law, all personal property present on the demised premises was liable to be distrained for the rent. This rule has been changed by sect. 1631 of the Code of 1871; but in exempting property found on the demised premises, belonging to others, who are not liable for rent, the statute expressly provides that the owner of such property shall not have the benefit of the exemption unless he will replevy the property, as provided for in the statute, before it is sold under the distress-warrant. We have heretofore held that such owner had no other remedy than replevin. Kendrick v. Watson, 54 Miss. 495. The sheriff, therefore, had no right to demand the indemnifying bond, and it was voluntary and void. To allow the alleged owner to recover .in this action would be to give a remedy which is expressly denied by the statute. The policy of the statute is to exempt property of others found on the demised premises from seizure and sale for the rent, and at the same time require the owner to interpose his claim before sale, so that the landlord may have the opportunity of seizing other property for his rent.

The judgment is affirmed.