State, Use of Adams v. Vandever

2 Del. 397

• Court: Superior Court of Delaware
• Decided: July 5, 1838
• Status: Published

Opinion

Per Curiam:

Harrington, J.

If the sheriff return a sale of goods subject to a certain rent which he pays to the landlord, slight evidence will be sufficient for him to defend himself against the claim of the plaintiff in the execution, to the amount of such payment. In such an action it will be for the plaintiff to show that such rent was not due.

But there is an important distinction between a money rent and a grain rent or share. In either case the landlord is entitled to be paid one full year’s rent. If it be a money rent, and the goods of the' tenant be sold by the sheriff, he is bound to pay the landlord his rent out of the proceeds of sale. If the rent be a grain rent or share, then the crops growing or being on the premises are to be sold by the sheriff, subject to the rent, and are liable to the landlord in the hands of the purchaser, and the sheriff is bound to pay the whole of the proceeds of such crops to the plaintiff in the execution, without any deduction for rent.

It is important then, for the jury to determine what rent this is . and what was levied and sold under the execution process. The de. fendants insist that Reybold claimed the rent for 1833-4, due 25th March, 1834, and in proof of this they show that about the time of the levy; Reybold distrained for this rent, which must have been the rent of 1834, for the rent of 1835 not then being due, he could not destrain for it. On the other hand it is insisted, that according to the evidence, this rent of 1834, or some part of it, had been paid ; and that it must, therefore, be the rent of 1835. The landlord is entitled to the rent either in arrear or growing due ; not exceeding one year’s rent. If this was rent arrear it was a debt due from the tenant; and, being ascertained in amount by the method provided by the law, we incline to think it would fall within the equity of the act as a money rent, and become payable out of the sale of the goods.

Rodney, for plaintiff. Booth and Hamilton, for defendant.

But if any portion of this sale was grain, or other produce, growing or being on the premises, we are clearly of opinion that no part of the proceeds of such sale was applicable to the landlord’s claim for rent. The execution creditor is entitled to all that such produce or grain should sell for. It is the duty of the sheriff to sell such produce, subject to the claim of rent, and the purchaser is liable to the landlord.

If, therefore, the jury should find that any part of the money raised by this sale was the proceeds of grain, or other produce, which was subject to pay rent by the share, they should not allow the payment made by the sheriff to the extent of the landlord’s share of such produce, or its proceeds. And if the jury are satisfied by the evidence, that the rent of 1834, or any part of it, was paid to Reybold by the tenant, M‘Coy, then the payment by the sheriff to Reybold of the whole year’s rent was not authorized, and it would be subject to a deduction to the extent of the tenant’s payment.

Verdict for plaintiff