Holland v. Townsend , 136 Pa. 392 ( 1890 )

Opinion,

Mr. Justice Green:

We are unable to agree with the learned referee in his conclusion that the postponement of the sale of the plaintiff’s goods from the 24th to the 31st of August constituted the defendants trespassers ab initio. The language of the act of 1772, § 1, 1 Sm. L. 370, directing the sale of the distress, is as follows: “ And after such appraisement, shall or may, after six days’ public notice, lawfully sell the goods and chattels so distrained for the best price that can be gotten for the same,” etc. The referee held that the landlord had no discretion to sell after the expiration of the six days’ notice, except by the consent of the tenant. A decision of this court, however, in Ricketts v. Unangst, 15 Pa. 90, to the effect that if there was only one bidder at the sale it would be the duty of the constable to adjourn the sale, induced the referee to say that it is possible that the landlord would be justified in postponing the sale if there were only one bidder present. We said in that case much more than this, to wit: “ But the officer ought not to offer the property before an attendance so thin. It would be plainly his duty to adjourn the bidding to another time; and, if he did not, the inference of collusion with the bidder would be so strong that the least spark of evidence would invalidate the sale.” Now, this power of adjournment is not put, in the opinion in that case, as an exceptional power justified only by the necessities of the case, but as a clearly existing general power which it would be the plain duty of the officer to exercise in the circumstances stated.

Nor do we see anything in the words of the act of 1772 in conflict with this view. The duty to sell the distress is imperative, and it must be “after six days’ public notice,” but nothing in the act declares that the sale can take place only on that one day. Many causes may transpire for rendering a sale undesirable, in the interest of the tenant, as also in the interest of the landlord, on the day fixed by the notice. The sudden and severe illness of either the tenant or the landlord, or the death of either party, or the pendency of negotiations, or the occurrence of fire in the building where the distress is impounded at the time of the sale, or the nonattendance of bidders, or very great inadequacy of bids; in short, many quite unforeseen events may readily occur which would make an adjournment quite necessary. The act simply requires a notice of at least six days before making the sale. It is therefore indispensable that a public notice of that length be given, but beyond that nothing is required by the act as a prerequisite to a perfect sale. A power of adjournment is incident to a power to sell, unless an adjournment is prohibited by express words or necessary implication, but there is nothing of that kind in this act. A general power to sell is given, accompanied with no restriction except that six days’ notice must be given. We cannot impose any other restriction except by exercising legislative power, which of course we cannot do. In this case, an adjournment of seven days took place, when the sale was made. That was not an unreasonable delay, and we certainly cannot see how it could convert a lawful distress into a trespass. There is no authority for such a proposition, nor any recognized principle, derived from a reading of the act of 1772 or from any other source, which requires such a ruling. The learned referee thought the cause of adjournment should appear affirmatively by testimony, otherwise the whole proceeding was invalidated. That might be so if a statutory duty to sell on a certain fixed day were established, but in the absence of such a prerequisite to the validity of the sale, an inference of invalidity does not arise merely because of a short and not unreasonable adjournment. The re'feree misconceived the decision in Quinn v. Wallace, 6 Wh. 452, in supposing that it declared a sale void if made after the expiration of the six days’ notice, as that question did not arise.

We cannot agree that the act of the landlord in taking possession of the premises and impounding the distress thereon was an eviction. The evidence was very clear that, after the warrant was in the officer’s hands, the landlord and tenant agreed that the latter might remain and carry on his business, upon his undertaking to pay fifteen dollars per day on account of arrearages of rent. He remained a short time, but did not keep his agreement; and it was not until this arrangement had proved to be a failure that the landlord proceeded with his distress. He then impounded the distress which remained on the premises and proceeded to sell it. The referee finds that there was nothing irregular up to this time, August 18th, the tenant having consented not only to the delay but to the acts of the landlord done prior to the 18th. He also finds that the impounding of the goods on the premises from the time of the levy to the time of the sale was not unlawful. B ut he finds that in demanding the keys of the tenant and expelling the tenant from the premises, the landlord was guilty of an eviction and became a trespasser ab initio. So far as impounding the goods on the premises is concerned, there can be no doubt that, by the long-settled law of this commonwealth, the landlord has the right to do so, and to take exclusive possession of that part of the premises in which the distress is impounded. It was so held in Woglam v. Cowperthwaite, 2 Dall. 68, and it was decided that notwithstanding the right to impound on the premises was omitted from our act of 1772, it was the landlord’s right at common law, and by long usage the practice had prevailed both before and after the passage of the act, and, further, that the right to impound on the premises continued at least during the five days allowed for the tenant to replevy.

In McKinney v. Reader, 6 W. 34, it appears from the statement of facts in the opinion of the court, that the landlord had impounded the goods distrained, by locking them up in the bar-room, keeping the key himself, and had kept possession of the bar-room for six or eight days, and the court below had charged that this was illegal, unless it was done by consent of the plaintiff’s wife. Mr. Justice Kennedy, in the course of a very elaborate opinion, showed that the charge of the court below on this subject was erroneous, and that the course pursued by the landlord was in accord with judicial opinion both in England and in this state. In both the foregoing cases, it was held that if the landlord was a trespasser at all, for having kept the goods on the premises for eight days, he would be a trespasser only for the three days’ excess beyond five days, and the distress was therefore not invalidated from the beginning. In Jackson & Gross on Landlord and Tenant, at § 1104, the authorities are collected, and it is shown that the goods may remain impounded on the premises for a reasonable time after the expiration of the five days, and that in all ordinary cases this will be until- the day of sale in due course.

The mere impounding of goods on the premises, until the day of sale, and the landlord’s taking them into his exclusive possession under lock and key, is not of itself unlawful and will not necessarily invalidate the distress from its inception. In the present case, the portion of the premises occupied by the plaintiff was a bar-room, where he conducted the business of a retail liquor seller. The rest of the premises he had sublet to another tenant. The property distrained consisted of the bar fixtures, furniture, shelves, and stock of liquor and cigars and other personal property on the premises occupied as a bar-room. Of course it was much more to the interest of the tenant that such property as this should remain in the room than to remove it therefrom; and, as this was the only room the tenant occupied, an exclusive possession thereof could not be taken by the landlord except in the way in which it was done. We cannot see therefore that the landlord became a trespasser ab initio, by exercising his lawful right to exclusive possession of the distress between the levy and the sale.

But we are not satisfied with the finding of facts by the referee on this subject. Lewis F. List, the constable who made the distraint, testified to the arrangement made with the tenant, by which the -latter was to remain on the premises and go on with the business by paying over the receipts of the daily sales, and the efforts the tenant was making to raise money or to sell out to others, all of which proved unsuccessful. This continued from the 10th to the 18th of August. He says : “ The receipts were only—one day it was $5, and the next day $4, and the next day $4; there were $13 in four days’ receipts, which he was credited for. Then, after that I was ordered to see him, and to state that it would be better for him to save the watchman’s expenses, and to close the place and give me the key, as the result was unsatisfactory, the amount of the receipts from the days’ sales. He said, ‘ If you want the keys you can have the keys and close up,’ and showed me the key to the front door and the key to the back door. I finally closed the place up, and took the watchman off, and saved the watchman’s expense.” The referee makes no mention of this testimony, and gives no reason why it should be rejected. The witness was disinterested, and he was not contradicted. The plaintiff gave a somewhat different version of the conversation, but admitted that he gave up the keys and left the place without objection. It is true, he says, he supposed he had to give them up, because it was the constable, but he does not saj1that he gave them up under compulsion, nor does he contradict in any substantial respect the version given by the constable. As a matter of course, if the constable’s account is correct, his act of taking possession was done with the knowledge and consent of the tenant. The knowledge the tenant admits, and the consent he does not deny. We do not rest the decision of this cause upon this one matter, but, we think, upon the plain import of the undisputed testimony, that there was no such satisfactory proof of an eviction as to warrant the finding that there was a clear eviction, by expelling the tenant from the premises, demanding and receiving the keys, and locking the place up. The landlord, in the exercise of his right to impound the distress on the premises, was entitled to demand and receive the keys, and to lock the place up until the sale, and he cannot be convicted of a trespass ab initio for doing what the law authorized.

The referee also found that the action of the defendant in visiting the Nonantum Worsted Co. upon the demised premises, and cautioning them not to pay any more rent to the plaintiff, and offering to execute a new lease for that portion of the premises, combined with locking up the bar-room and expelling the tenant, constituted an eviction. It is true he finds that this eviction would suspend the rent for the month of August, which is not a matter of much account, as he also found that the rent due could not be defalked from the damages sustained by the plaintiff. We do not agree that the conversation with the officers of the Nonantum company about a new lease, and the notióe to pay no more rent to the plaintiff, would have any effect upon the legality of the distress, and certainly would not convert the landlord into a trespasser ab initio.

We think the damages allowed by the referee were quite excessive. At the very time the distress proceedings were going on, two executions were in the hands of the sheriff against the plaintiff, and immediately after the constable’s sale the sheriff made sale of the remaining assets, including the plaintiff’s interest in the lease, which was bought by the defendants. This was on September 9th, and terminated any interest of the plaintiff in the premises. We cannot tell from the report of the referee what he allowed for loss of business, but as he had found that the value of the property sold was $900.23, some inference would arise that the difference between that sum and the amount of the award, $1,650.23, would represent the amount allowed for loss of business. As this period was only from August 18th to September 10th, the finding of such a sum would be altogether out of reason. But it is not a matter of much moment, as we do not consider there was enough in the case to constitute the landlord a trespasser, or to invalidate the distress. As this leaves nothing upon which to found an award of damages, it follows that the judgment must be reversed without a procedendo.

Judgment reversed.