Hazlett v. Mangel , 1898 Pa. Super. LEXIS 133 ( 1898 )

Opinion by

Smith, J.,

This action of trespass was brought to recover the value of goods distrained and sold under a landlord’s warrant. The plaintiff was a son of the tenant and claimed to be the owner of the property sold, and the defendant acted as constable or bailiff in executing the warrant. The property was on the demised premises and in the joint possession of the tenant and the plaintiff, when the rent fell due and the distress was made. The defendant proceeded to sell as if on an ordinary writ of execution. No appraisement of the property was made, or waived by the tenant or the owner.

At common law, while the landlord might distrain for rent in arrears, and keep it impounded for an indefinite period, unless replevied by the tenant, he could not sell or dispose of property thus detained. The right to sell the property seized and apply the proceeds to the payment of the rent was given by statute. Its exercise, therefore, must be in strict conformity with the statutory provisions. A failure to comply with these, on any point is, unless performance be waived, fatal to a sale under a landlord’s warrant.

Passing the question of the legality of the seizure and detention, there can be no doubt about the illegality of the sale in this case for want of an appraisement. It has uniformly been held, in a long line of cases, from Kerr v. Sharp, 14 S. & R. 399, to Wyke v. Wilson, 173 Pa. 12, that a sale of chattels under a landlord’s warrant, without an appraisement as required by the Act of March 21, 1772, 1 Sm. L. 370, is unauthorized and void, and that the person making such sale is a trespasser ab initio. The cases cited also show that a tenant may maintain trespass for the sale of his own property when thus unlawfully disposed of, and in many of the cases the action was directly between the tenant and the landlord. It is, therefore, quite immaterial to the defendant here, whether the property embraced in this action was owned by the tenant or by the plaintiff. In either event the defendant committed a trespass in selling it, for the redress of which an action of trespass is the proper remedy. The evidence seems to warrant the finding of ownership of the property in the plaintiff, and the tenant, by his testimony in this case, would be estopped from successfully prosecuting any further proceeding therefor, in his own behalf.

What has been said sufficiently meets all that is material in the specifications of error; they must be overruled.

Judgment affirmed.