Wyke v. Wilson , 1896 Pa. LEXIS 651 ( 1896 )

Opinion bv

Mr. Justice McCollum,

While the evidence descriptive of the defendant’s conduct at the sale was conflicting, it clearly showed that he went there prepared for war. He carried with him a loaded revolver and his exhibition of it there was, to say the least of it, consistent with a purpose on his part to intimidate the plaintiff and his family. When it is considered that the property he proposed to sell to satisfy his disputed demand for rent was not worth, according to his estimate of its value, more than fifteen dollars, and that he could not realize from the sale of it more than seven dollars, exclusive of costs, it would seem that the methods he adopted to compel the sale were too expensive. This is a view of them that may have occurred to him after the verdict.

All the specifications of error may be considered together because they really raise but one question and that is whether in maldng the sale the defendant was a trespasser. We agree with the learned court below that he elected to proceed for his rent under the statute which confers and regulates the exercise of the right of distress, and that having so elected he was bound to conform to its provisions in order to validate the sale. That his lease gave him another procedure for collecting the rent did not qualify or dispense with any of the requisites of the proceeding under the statute. If he failed to comply with the requirements of the latter he became a trespasser ab initio, and there is nothing in the lease which can relieve him from the consequences of his noncompliance. The property was not distrained as bis but as the property of the tenant, and the proceeding subsequent to the seizure of it should have been conducted precisely as if the lease had not given bfm another remedy: Fernwood Masonic Hall Association v. Jones, 102 Pa. 307.

It is conceded that the appraisement required by the statute was not made, and it is settled that the failure to make it was fatal to the proceeding and rendered the defendant a trespasser ab initio: Kerr v. Sharp, 14 S. & R. 399; Quinn v. Wallace, 6 Wharton, 452, and Brisben v. Wilson, 60 Pa. 452.

Judgment affirmed.