The Richmond v. Cake

1 App. D.C. 447, 1893 U.S. App. LEXIS 3057

• Court: Court of Appeals for the D.C. Circuit
• Decided: November 8, 1893
• Docket: No. 129
• Status: Published

Opinion

Mr. Justice Morris

delivered the opinion of the Court:

We will first consider the question of the validity of the writ of attachment issued on June 3, 1892, and the plaintiff’s appeal from the order quashing the same. For we will not stop to consider the right of the marshal under the authority of the court to amend his return; this is not seriously controverted.

The act of Congress of February 22, 1867, entitled “An act to amend the laws of the District of Columbia in relation to judicial proceedings therein” (14 Stat, 403), contains, among other radical and important changes in the then existing law, a provision, designated as Section 12 of the act, and which was subsequently incorporated into the Revised Statutes of the United States for the District of Columbia, as Sections 677 to 679, both inclusive, of that revision, whereby the power of distraint exercised by landlords at common law to seize the goods of their tenants for rent in arrear was abolished, and in place of it, it was enacted that— “The landlord shall have a tacit lien upon such of the tenant’s personal chattels, on 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 the said three months.” And this lien may be enforced:

“ 1st. 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 part of said chattels; or,

“ 2d. 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,

“ 3d. By action against any 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, arrear, and damages.”

Another section of the same act (Sect. 10), which became Section 808 of the revision, provides that the proceeding to enforce any lien shall be by bill or petition in equity. And it may also be noted here that an act of Congress of the previous year (act of June I, 1866, 14 Stat, 54) remodeled the law of attachments in the District of Columbia, and provided that they might issue upon affidavits showing either non-residence of the defendant, or evasion .by him of ordinary process, or removal or contemplated removal by him of some of his property from the District so as to defeat just demands against him (Rev. Stat. U. S. for Dist. of Col., Sec. 782).

The second and third process provided for the enforcement of the landlord’s tacit lien, have no part in the discussion of the present case further than as they may help to throw light upon the first. It is quite evident at all events from the consideration of all this legislation, that, while the general purpose of the legislature is quite clear, it has not expressed its intention with all the precision that could be desired. In the case where the landlord’s rent is due and payable to him, and it remains unpaid, the provision of the statute is probably clear enough. And yet we. are not to suppose that even in that case is Section 10 of the act applicable which provides that every lien shall be enforced by suit in equity. For the remedy here is plain, adequate and complete by the ordinary common law processes of the courts; and the generality of Section 10 is to be restricted in its application to such cases as those of which the common law cannot take cognizance. It is also quite clear that, notwithstanding the comprehensive scope of the language used in the statute, it was not the intention of the law-making power to subject goods and chattels used in the course of trade and as the ordinary objects of purchase and sale to the effect of this tacit lien to the same extent at least as other goods and chattels. It is not to be supposed for a moment that a purchaser, who goes into a store to buy an article in the ordinary course of business, cannot purchase that article except in subordination to the landlord’s lien, even when he knows that the storekeeper is a tenant merely, and even though he should be aware that he was in default for the payment of his rent. No more can we suppose that the legislature intended to authorize the enforcement of a possible liability that might never become an actual one. In the case of long leases there are various contingencies that might militate against the continued enjoyment of the premises by the tenant and the continued right to the rent by the landlord. And in such leases it is the general, we may say the almost universal, custom of the parties to provide in fact for shorter subordinate terms, especially for the regulation of the matter of the payment of rent, and we must understand that the act of Congress is to be read with reference to such subordinate terms. The legislature could scarcely have intended to provide for the enforcement of a liability, which is neither due nor has commenced at all to accrue. On the other hand, it may well be assumed that Congress intended to protect the landlord in the enforcement of his security for rent which had commenced to accrue, but which had not become payable. Where, therefore, periods of payment have been provided in a lease, either monthly, quarterly, or annually, as is usual, and one of these periods has commenced to run, and the right of the landlord to his rent for that period, or to some proportional part of it, in any case in which apportionment would be proper, has become fixed and absolute, the legislature might well extend the provisions of this statute to the protection of that right. If this were not the intention of Congress it would follow that, in the case of any lease, no matter how long its term was to extend, the landlord might on the very second day of the term, after the tenant has entered into possession, institute proceedings to sequestrate enough of the property of the tenant on the premises to pay the rent for five, ten, twenty, or nine-nine years, whatever might be the duration of the term. Of course, we cannot admit for a moment that this was the intention of the law. And if this could not be done, neither can a suit be maintained for a period of time for which, under the express agreement of the parties, the rent has not commenced to accrue. We read the statute to mean cases in which the rent has actually commenced to accrue, but is not yet payable, and we think the decision of the Supreme Court of the District of Columbia, in the case of Joyce v. Wilkenning, 1 MacA., 573, is founded upon reason and justice, and rightly disposed of this question.

We are of opinion, therefore, that the order of the court in special term in quashing the attachment issued on June 3, 1892, was right, and should be affirmed.

We next proceed to consider whether the attachment issued on June 2, -1892, for the two- months’ rent then due and payable, was valid. The defendant’s claim in opposition to the writ is that the tacit lien given by the statute only attaches to the goods and chattels of the defendant on the premises subject to execution; that the plaintiff nowhere makes it appear affirmatively, as he should do, that the goods attached were subject to execution; and that, on the contraiy, the lease between the parties shows that they were not subject to execution, inasmuch as they were actually covered by a deed of trust in favor of the complainant. We do not regard these propositions as well founded.

The exemption from the lien of chattels not subject to execution for debt refers only to such statutory exemptions as are allowed to householders, mechanics and others by' the act of Congress of Feb. 5, 1867 (14 Stat., 389), enacted a few days before the act which we are now considering, and which appears as Section 797 of the Revised Statutes for the District of Columbia, and any other similar exemptions that there may be in existence. It cannot in reason be construed to extend to property upon which there is an existing lien by way of mortgage, deed of trust, or otherwise. If it were so construed, the landlord’s remedy would in most cases be lost; and yet the tenant might have ample property beyond the reach of the landlord. There is no reason why the statutory lien might not attach even if there was a prior existing lien; it would, of course, attach subject to the existing lien, and the remedy for its enforcement might be in equity, under Section 808 of the Revision, to which we have heretofore referred. The letter of the statute is “ chattels not subject to execution for debt.” It does not say “ chattels not subject to execution at common law,” but chattels not subject to execution under any circumstances. The letter and the spirit are here in accord. Webb v. Sharp, 13 Wall., 14.

It is argued, however, that the chattels in this case cannot be taken in execution at all by way of attachment, for the reason that they are subject to a deed of trust in favor of the plaintiff. This argument might have force in the case of real estate, where the title must be pássed by deed; but a lien upon chattels may be waived by the holder of it by an act in pais. Especially may it be waived by the plaintiff in this case, inasmuch as he is the only party that might be aggrieved. If he chooses to enforce his statutory and not his conventional remedy, no other person, and least of all the defendant, has any right to complain.

Moreover, there is nothing at all to show with certainty in the present case that the chattels attached were actually covered by the deed of trust which was stipulated to be executed by the defendant. The plaintiff swears that the chattels sought to be attached were the defendant’s personal chattels on the premises on which the plaintiff under the law has a tacit lien. This the defendant nowhere controverts, and the fact that a deed of trust was to be executed, or was in fact executed, years before, upon certain chattels then in the building, or soon thereafter to be placed in the building, does not at all imply that all chattels that might thereafter be found in the building and belonging to the defendant were covered by such deed of trust.

The contention of the defendant that the plaintiff ought to have made it appear affirmatively that the chattels sought to be attached were not subject to exemption, we regard as wholly untenable. The plaintiff swore that they were subject to the lien, and only chattels not exempt from execution could be subject to the lien. The exemption, in any event, is rather a guide to the marshal in making his levy, than a requirement to govern the plaintiff in shaping his pleadings. We have just held that the exemption intended by the statute is the exemption of amount, rather than of specific articles, and the exemption cannot well be determined until the marshal proceeds to make his levy. To require the plaintiff, therefore, in advance to state that the chattels were not subject to exemption, when a certain amount might have been liable in any case to be exempted, and it was not for the plaintiff to determine the specific articles that should be exempted, would be to require an unreasonable thing.

We are of opinion that the special term of the Supreme Court of the District of Columbia was also right in refusing to quash the writ of attachment of June 2, 1892.

There remains the question of the appeal from the order of that court in directing the entry of judgment in both suits against the defendant, under what is known as the 73d of the General Rules of the Supreme Court of the District of Columbia. That rule, which is a most salutary one for the speedy administration of justice, provides as follows:

“ In any action arising ex contractu, if the plaintiff or his agent shall have filed, at the time of bringing his action, an affidavit setting out distinctly his cause of action, and the sum he claims to be due, exclusive of all set-offs and just grounds of defense, and shall have served the defendant with copies of his declaration and of said affidavit, he shall be entitled to a judgment for the amount so claimed, with interest and costs, unless the defendant shall file, along with his plea, if in bar, an affidavit of defense denying the right of the plaintiff as to the whole or some specified part of his claim, and specifically stating also, in precise and distinct terms, the grounds of his defense, which must be such as would, if true, be sufficient to defeat the plaintiff’s claim, in whole or in part.”

In pursuance of this rule, the plaintiff filed an affidavit which was sufficient to authorize the entry of judgment in his favor unless the defendant interposed a sufficient counter' affidavit. The question now is the sufficiency of that counter affidavit. The plea which it supports is a plea of eviction of the defendant from the premises by the plaintiff on the 2d day of June, 1892, and that the plaintiff has since remained in the exclusive possession and control of the premises. And the defendant’s affidavit is to the effect that on the day specified, June 2, 1892, when the marshal and his deputies undertook to execute the writs of attachment that had been issued, “they took complete possession and control of The Richmond Flats, and evicted and ousted the defendant from the same,” and that he (the defendant) was informed and believed, and expected to prove at the trial, that this was done under the direction and authority of the plaintiff; and that about the 5th day of June, the plaintiff, by its agent, resumed full possession of the premises, and has since remained in such possession.

Eviction of the tenant by the landlord from the premises during the term of the tenancy is undoubtedly a good and sufficient defense against a claim for rent due or payable, for any part of the term which the tenant has thereby been prevented from enjoying. And notwithstanding that in this case the rent for June, 1892, was due and payable on the first day of June, 1892, the consideration for such rent was the use and occupation of the premises by the tenant during the month of June, and if, on the 2d day of June, the tenant was evicted by the landlord, the right of the landlord thereafter to recover that rent became barred by his own action.

But eviction, it is argued, is a conclusion of law; and it is claimed that the defendant in this case should have stated, not that he had been evicted, but the facts assumed by him to have constituted an eviction. And it is argued in the same connection that the affidavits filed in the cause by the deputy-marshal and the bailiffs who served the writs of attachment, showed very plainly that the defendant had not been at all disturbed in his possession of the real estate that had been demised to him, and that he was not in any manner whatever disturbed, further than was absolutely necessary for the marshal to make his levy and schedule of the personal property attached.

But the merits of the case and the right of the plaintiff to judgment cannot be tried on these affidavits of the deputy-marshal and bailiffs. They have no place under the rule in the consideration of the motion for judgment. The rule provides only for affidavits by the plaintiff and defendant, and does not contemplate the substitution of rebutting affidavits for trial by juiy. While we are justified in inferring to some extent that the marshal and his deputies did no more than they were required by their duty to do, the motion for judgment must be determined only by the sufficiency or insufficiency of the defendant’s affidavit. If he has sworn falsely in it, as he must have, done if the affidavits of the deputy-marshal and bailiffs are true, he has made a proper case for the criminal court; but we cannot here assume that he has done so. We must assume his statement for the present purpose to be true. And the only question is, whether, if we assume it to be true, it shows a sufficient defense. We think it does. Eviction is not merely a conclusion of law. The term is used to express the act of dispossession, as well as the result of the act; and we are to take it here in the sense in which it would be effectual, rather than in the sense in which it would be meaningless and unavailing.

Eviction by the marshal, without instructions to that effect from the plaintiff would, of course, constitute no sufficient ground of defense; and the defendant does not swear that the marshal, in the alleged eviction, acted under instructions from the plaintiff, but only that he, the defendant, was so informed and believed, and expected so to prove at the trial. It might be difficult, perhaps impossible, upon this statement to hold him for perjury; but it would seem to be the best statement that, under the circumstances, he could make. He is not supposed to have personal knowledge of the instructions given by the plaintiff to the marshal. He swears to the fact of eviction, and if he was not in fact evicted, he has committed perjury; and if he cannot be held for perjury in the other statement, it is an incident in the administration of justice for which no provision has been or perhaps can be

made. The plaintiff is not deprived of any substantial rights by being remitted to the ordinary course of justice and his trial by jury.

We think the defendant's affidavit is a sufficient affidavit of defense; and we must, therefore, reverse the judgment of the Supreme Court of the District of Columbia, in special term, and remand the cause to that court, with instructions to vacate that judgment, and for such other proceedings in accordance with law as may be just and proper. Each party voill pay his own costs on appeal.