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FOWLER v. RAPLEY.

December 1, 1872

FOWLER
v.
RAPLEY.



APPEAL from the Supreme Court of the District of Columbia; the case being thus: An act of Congress of February 22d, 1867,*fn1 abolishes the right of distress in the District of Columbia, and enacts that 'Instead of it the landlord shall have a tacit lien upon such of the tenant's personal chattels, upon the premises, as are subject to execution for debt, to commence with the tenancy and continue for three months after the rent is due, and until the termination of any action for such rent brought within said three months. And this lien may be enforced–– 'First. By attachment, to be issued upon affidavit that the rent is due and unpaid; or if not due, that the defendant is about to remove or sell all or some of said chattels; or, 'Second. By judgment against the tenant, and execution to be levied on said chattels or any of them, in whosesoever hands they may be found; or, 'Third. By action against the purchaser of any of said chattels, with notice of the lien, in which action the plaintiff may have judgment for the value of the chattels purchased by the defendant, but not exceeding the rent in arrear and damages.' In this condition of the statutory law the firm of Stackpole & Hall engaged in selling lumber and ice, at wholesale and retail, in the city of Washington, on the 1st of July, 1867, rented a wharf, in the said city, for the purpose of a lumberyard and ice-houses, from one Rapley, at the monthly rent of $100. Stackpole & Hall carried on their business, on the premises, until the 23d of November, 1867, when they sold out their stock of ice and lumber to one Perkins, rent being at this time due, and in arrear from the 1st day of the preceding August. Perkins immediately took possession of the stock and of the premises, and continued the business until the 14th of January, 1868, when, there having been no discharge of the arrears of rent, he sold the stock, and delivered the same to one Fowler, who immediately took possession of the premises, and continued the business thereon. On the 24th of January, 1868, Rapley sued Stackpole & Hall for rent in arrear, to wit, $100 per month for the months of August, September, October, November, and December, 1867, and caused an attachment to be issued under the act of Congress above quoted, and under the same the marshal seized upon part of the property which had belonged to Stackpole & Hall, and had been by them sold to Perkins, and by Perkins to Fowler, and which had not been removed from the premises. Both Perkins and Fowler knew, at the time of their respective purchases, that the premises were rented premises, but neither of them had notice otherwise than by implication from the facts above set forth, that the rent was in arrear. Upon this case, which was stated for the opinion of the court below, that court, on a writ of replevin issued by Fowler against Rapley and the marshal for the seized property, gave judgment for the defendants. This judgment Fowler now brought here for review.

The opinion of the court was delivered by: And so in Webb v. Sharp,*fn2 where this court enforced a landlord's lien as against a subsequent mortgagee, Bradley, J., says:

Mr. Enoch Totten, for the plaintiff in error:

1. By the two sales of property the landlord's lien was discharged.

The case states that while each of the purchasers knew that the premises were rented, neither of them knew that rents were in arrear. The landlord, it seems, had permitted the rents to remain in arrear six months, and then without taking any action to secure his money, allowed a sale of all the chattels to be made to an innocent purchaser. He stood, stupidly gazing, until this purchaser had parted with his money and was in lawful possession of the property. Then he seizes it.

The statute declares positively what the remedy shall be against a purchaser of chattels on the premises with notice of the lien, and gives no remedy against a purchaser without notice. This necessarily leads to the construction that a bon a fide sale, without notice, discharges the property from the operation of the lien.

'Goods sold in the ordinary course of business undoubtedly become discharged from the lien, otherwise business could not be safely carried on.'

2. Even if the chattels were taken by the purchasers with notice of the lien, it was unlawful for the landlord to proceed against the property by attachment.

The statute authorizes this process to be used for the purposes, only, of holding the property for judgment after the rent has become due, and to prevent a sale or removal thereof. In cases where a sale has been perfected, the remedy is explicitly pointed out in the third subdivision of the said section. The landlord must resort to his action at law against the purchaser, instead of seizing the chattels by attachment.

Messrs. T. J. Miller and R. T. Merrick, contra:

The landlord's lien, under the act of 1867, attaches at the commencement of the tenancy, or whenever personal chattels, owned by the tenant and subject to execution for debt, are brought on the rented premises.

This lien once attaching continues upon the chattels to which it attaches, into whosesoever hands they may come during the time limited for instituting proceedings; unless, probably where the chattels are disposed of by the tenant in the ordinary course of mercantile transactions.

In providing a personal remedy 'by action against any purchaser of any of said chattels with notice of the lien,' the law, by implication, permits the landlord, when proceeding against the chattels in specie, to reach them into whosesoever hands they may be found, whether the holder had notice of the lien or not.

The plaintiff, as assignee of the unexpired term and of the personal chattels on the premises, was put upon inquiry as to the terms and conditions of the tenancy; he was therefore bound to know the charges upon the goods that existed by reason of the tenancy; and he can occupy with respect to the landlord's right–as such–to the goods on the premises, no better position than did his assignor.

Decisions of the courts of Iowa, Missouri, Alabama, and Arkansas in interpreting statutes of those States,*fn3 nearly similar in their provisions to the act of Congress now ...

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