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exists this remedy is not available, but it has been held to lie on an oral lease, or a lease void for want of writing. Distress lies for rent in money, produce, service, or whatever it be so it is rent.
$ 87. Same: Tenant's defenses. At common law the rule was that termination of the relation of landlord and tenant terminated the right to take distress, but did not entitle the tenant to the release of distress already taken till the rent was paid. To obviate the difficulty of this rule, it has been provided by statute in some of the states that distress may be taken within a certain time after the termination of the relation, usually six months, and though the relation is terminated by expiration of the term, or notice to quit, but not by forfeiture. If the tenant at will died the lease was ended with the death and also the right to take distress; but on death of a tenant for years his executor stood in his place, or after appointment his administrator if he died without executor; and against these the lessor might distrain, but if the lessor took the office he waived his right. Agreement of the lessor not to distrain, eviction by the lessor or a paramount title, tender of the rent by the lessee, presence of the lessee on the land when it was due and failure of the landlord to come for the rent, a grant or assignment of the reversion by the lessor, a release or accord and satisfaction, are each separately a good defense to a distress. Wrongful distress will not be restrained in equity, since the tenant's remedy by replevin is complete.
§ 88. Same: Who may distrain? Incidents of distress. A joint tenant may distrain for the whole rent, a tenant in common for his share, a guardian for his ward, husband for his wife, receiver or assignee in the place of the assignor, mortgagee in possession in place of the mortgagor, or executor in right of his testator by statute, though not at common law. To make a distress complete there must be a seizure, but it has been held that notice by the landlord to the tenant or posted on the goods not to move them is sufficient. The person taking the distress is bound to take reasonable care of the goods and has no right to use them except for the benefit of the owner. If the property is injured through his neglect he is liable to the tenant in damages, and an injury will be presumed to be due to his neglect. Rescue of distrained goods by the tenant gave the landlord an action for damages and the right to take the goods wherever he could find them, and the tenant was also liable criminally. Release by the lessor at the request of the tenant or procured by his fraud entitled the lessor to take a second distress, but in the absence of some legal cause the lessor could not take a new distress after having levied sufficiently and voluntarily abandoning it.
§ 89. Same: What is distrainable? Only personal property on the premises was distrainable at common law, excluding real fixtures, growing crops, and wild animals not confined. Perishable commodities, articles in course of manufacture, and all chattels in the actual use of the tenant at the time, such as the horse he is riding, or the ax he is using, are exempt at common law. Beasts of the plow and implements of trade could be taken only as a last resort. The goods of the guest at a hotel, or sent
to an auctioneer or commission merchant for sale are not liable to distress for the rent of the hotel-keeper or auctioneer. All goods in the hands of the sheriff on execution or otherwise in the custody of the law are exempt. By statute, 8 Anne c. 14 § 1, it was provided that the sheriff should not take the goods of a tenant on the premises without payment of the tenant's rent arrear not exceeding one year, and this statute has been re-enacted in this country in some states.
§ 90. Same: Mode of levy. The landlord had no right to break into the lessee's house to levy a distress, but might come in and levy if he found the door open, or might enter through an open window, though it was necessary to open it further to get in. Of course he might climb over a fence or wall to get in. He was liable for breaking into the buildings other than the house without demanding admission first, if the tenant's lock or other goods were injured thereby; but after demanding admission he might break into any building other than the dwelling house. By modern statutes the lessor has no right to take distress without a warrant issued by some officer, and by some statutes the levy can only be made by an officer. At common law the landlord or his agent might take the distress, and no warrant from any public office was necessary. The statutes also often require the landlord to give a bond to secure the tenant from damages from illegal use of the warrant.
§ 91. Same: Statutory sale. Where a warrant is issued by a court it is usually returnable, and by the appearance of the tenant may result in a trial and judgment as in civil cases in court, with costs, execution, and sale of the property as a result. At common law the lessor had no right to sell the distress, but only to hold it till the rent was paid. This was changed in 1689 by a statute permitting a sale for rent, after certain formalities. Statutes permitting execution and sale provide for the time and place of sale and the publication of notice for several days by posting in a public place. In case of sale it is made by a sheriff or constable, and the surplus realized above the judgment and costs of the sale is delivered to the tenant. Immaterial or clerical defects in the proceedings do not affect the validity of the sale; but failure in a substantial respect to pursue the requirements of the statute may render the whole proceedings wholly void. For illegal use of the warrant the lessor is liable if party to it, and also the officer guilty of the wrong. If the distress was illegal and void the recovery by the tenant would be the value of the goods at the time of the taking, regardless of what they sold for.
8 92. Lessor's lien for rent: Validity against tenant's creditors and vendees. In the absence of statute or agreement between the parties there is no lien in favor of the landlord on the goods of the tenant for the payment of the rent. And while they may make an agreement that will be good between themselves, if supported by sufficient consideration, without any writing to prove it, unless made before or at the time of the lease so as to be impliedly abandoned unless embodied in the writing; yet as against subsequent purchasers in good faith without potice, such an agreement is void unless it is written and
recorded as required by the law concerning chattel mortgages to make them valid against creditors and purchasers, for such an agreement is in substance a chattel mortgage. It is not a pledge, because the lessor is not in possession. Likewise, an agreement by the tenant to execute to the landlord a mortgage to secure the rent, or to pledge personal property to him for that purpose, gives the lessor no rights against the tenant's creditors and vendees without notice if the mortgage has not been given or is not properly made or recorded, or the pledge has not been made and deposited. An agreement between the parties that the tenant's property shall not be removed from the premises till the rent is fully paid is personal and not binding on the tenant's creditors and vendees without notice.
In several of the states it has been held that even a reservation of the title to the crops raised on the land is not valid against the tenant's creditors if not recorded. In a contest between the lessor and an execution creditor of the lessee the court said: “It was insisted by counsel for the plaintiff in error that this property was not subject to the fi. fa. [execution] of Scott, because at the time of the renting of the land by Almand to Plunkett, a verbal contract was made whereby Plunkett agreed that the whole crop should be Almand's until the debt which he owed Almand for supplies to make the crop had been fully paid off and discharged, although Scott's judgment was older than the contract made between Almand and Plunkett. We do not agree with him in this contention. The evidence clearly shows that the relation of landlord