Lengert Co. v. Building & Loan Ass'n

Opinion by

William W. Porter, J.,

The plaintiffs claim to be the owners of a certain moving van which they leased to one, Rohrbacher, The defendants seized, inter alia, the van under a distress for rent due them as landlords of the premises occupied by Rohrbacher. The distress was known to the plaintiffs before the sale of the van. They had time and opportunity to protect themselves. This is shown by the fact that a notice was sent, by their attorney, to the defendants, claiming ownership as against the distraint. It thus was the duty of the plaintiffs to bring replevin before the sale and in that proceeding prove their title: Bogert v. Batterton, 6 Pa. Superior Ct. 468; Esterly Machine Co. v. Spencer, 147 Pa. 466. They claim, however, that there was a failure to make a proper distraint upon the van taken and sold, and that this justifies them in resorting to this action for damages.

The facts upon which the contention is based are, that the van included in the distress notice was not upon the premises at the particular time that the constable left the notice, but was returned to the premises a few hours later. The demised premises were the place where the van was kept and from which it was taken for use upon the streets on the morning of the day of the service of the notice by the constable. The watchman, put in charge of the premises by the constable, took the van into custody pursuant to, and on the day of the service of, the notice. Thus was completed the seizure of the property for the payment of the rent. In Furbush v. Chappell, 105 Pa. 187, it is said: “As a general rule, to render the distress complete, there must be a seizure of the property distrained upon; but a very slight act is sufficient to constitute a seizure in contemplation of law. It need not be an actual seizure of the particular goods. If the landlord gives notice of his claim for rent and declares the goods which he names shall not be removed from the premises until the rent is paid, it is a sufficient seizure.” It was held by this court in Snyder v. Boring, 4 Pa. Superior Ct. 196, that the notice should be in writing, and be sufficient to inform the tenant or the owner “what are the goods taken and the amount of the rent in arrear.” In the case before us notice in writing was served, and among the goods specified was the van in dispute. Thus there was a written notice followed by a talcing. After the seizure by the constable and the watchman, the van was taken from the premises and used by the tenant. When found upon the street, it was seized by the constable, deposited with an auctioneer and subsequently sold. This taking, however, was by virtue of the notice previously given and the seizure previously made, pursuant to the landlord’s warrant. The plaintiffs having failed to exercise their right to sue out a writ of replevin before the sale of the van, have now no standing to hold the defendants liable in damages for a trespass.

Judgment affirmed.