Opinion
Fall Sessions, 1839.
Gray, for the landlord.
Booth, for the creditor.
FI. FA. levied: sale made, and sheriff brings proceeds into court.
The above fi. fa. issued against Robinson, at the suit of L. Shuster, on the 23d March, and was placed in the sheriff's hands. Robinson moved on the farm of Robert Polk on the 25th of March; and after he had moved the sheriff levied on the goods, being on the premises, and sold them. The proceeds were brought into court, and were claimed both by the landlord and the execution creditor.
Motion by the landlord to take the money out of court to the amount of his rent.
Mr. Gray referred to the act of assembly ( Digest 366,) which he claimed as giving the landlord his rent out of the proceeds of sale, in any case except that of an actual levy before the goods went on his premises.
"If goods and chattels of a tenant being upon premises held by him by demise under a rent of money be taken by virtue of any process of execution, attachment or sequestration, the said goods and chattels shall be liable for the rent of said premises in arrear or growing due, at the time of such taking, in preference to such process; provided that this preference shall not extend to more than one year's rent; accordingly the landlord shall be paid such rent (not exceeding one year's rent) out of the proceeds of the sale of such goods and chattels, before any thing shall be applicable to such process; but if the landlord, before the taking of the goods and chattels of his tenant by virtue of such process as aforesaid, have destrained such goods and chattels for rent in arrear, such distress or the levying of the rent in arrear under it shall not preclude him from the preference given by this section."
Mr. Booth contended that the writ, being in the hands of the sheriff, bound the goods from that time, without an actual levy; and that the goods went on the premises bound by that lien. So if goods be sold after execution issued and placed in the sheriff's hands, they are bound even in the hands of a purchaser.
"No writ of execution shall bind goods and chattels, until it is delivered to the sheriff or other proper officer to be executed. If several executions against the same defendant be so delivered on the same day, the first delivered shall have priority. The sheriff or other officer receiving an execution shall in a docket set down the date of receiving it; and when several executions are delivered on the same day, this docket shall show the order in which they are received; and the clerk or prothonotary issuing an execution shall indorse thereon the date of the issue." ( Digest 394, sec. 5.)
It has been decided on a reference before Chief Justice Thomas Clayton, that goods sold on a venditioni exponas issued after they went on the premises, which goods were levied on under a fi. fa. before they went on, were not subject to rent in preference to the execution.
Mr. Gray admitted that the execution was a lien, but denied that it would bind as against either a purchaser without notice, or a landlord, until actual levy. The sheriff could maintain no action for the goods until actual levy. The goods are not in the custody of the law until then. (6 Law. Lib. 365; 3 Bac. Ah. 733, tit. Execution.) The Court held that the goods being upon the demised premises before they were taken in execution; that is, before an actual levy, were subject to rent; and directed the amount of the rent to be paid out to the landlord; and the balance to the execution creditor.