Buckey v. Snouffer

Tuck, J., delivered the opinion of this court: Whatever may be the law elsewhere, in this State when a debtor applied for the benefit of the insolvent laws under the act. of 1805, ch. 110, and its supplements, his property came under the custody of the law, for the benefit of his creditors. Alexander vs. Ghiselin, 5 Gill, 138. Waters vs. Dashiell, 1 Md. Rep., 455 . And it being well settled that goods in the custody of tile law are not liable to be distrained, it. follows that the distress relied upon by the appellee cannot be sustained, the property at tile time having been beyond its reach.

That a claim for rent is of peculiar character, and may be recovered in full, when other creditors of the tenant will be allowed a dividend only of his estate, cannot be denied. But we do not understand this to lie in consequence of the rent being, per se, a lien on goods found on the premises. It is because the law allows the landlord to collect, his rent by seizing the property as a pledge, to be dealt with according to its requirements. That it hinds as a lien only when this legal right of distress has been exercised, is conceded by the appellee’s argument, and the cases referred to show this to be the law.

Eden, 304. Bouvier’s Bac. Abr., 695; In England the doctrine in cases of bankruptcy is different from the law in this State in cases under the insolvent system. According to their decisions the landlord is allowed a preference, although he distrains after the bankruptcy; but it is upon the ground that the proceedings do not. place the property in custodia legis, as we hold the acts of insolvency do here.

It follows, there ¹⁵⁶ fore, that if we are right in saying that under our acts of Assembly the insolvent’s estate is placed in the hands of the law, the reason of the English rule is against allowing the appellee a preference. 1 Atk., 102, 103, 104. The legislation upon the subject indicates that rent was never considered as possessing the attributes of a lien. If so, why was it declared by the statute of Anna that sheriffs, levying executions, should satisfy one year’s rent? If rent was a lien before the statute, the property passed to the sheriff, incumbered with the landlord’s claim; and the plaintiff in the execution could have had satisfaction only after payment of the rent.

Again, by our act of 1836, ch. 192, such demands, under certain limitations, are allowed priority in the administration of deceaseds’ estates without a distress. Surely this act would not have been passed-if it had been supposed that rent was already a lien or incumbrance. The act of 1826, ch, 266, does not, as we think, support the appeliee’s claim. It relates to removals of property “by the tenant, or by his order and direction,” declaring certain removals to be clandestine, and does not, in terms or by intendment, affect titles acquired by insolvent trustees.

But we think the act of 1805, ch. 110, sec. 7, is decisive of the question. It gives priority to judgments, incumbrances and liens; but it declares also that no process against the property. shall have any effect thereon, “except writs of Ji. fa. actually and bona fide laid before the time of the application.” Whether a distress for rent levied before that time is process within the intent of the act, does not arise on this appeal; nor would such a construction aid the appellee, because he made no such distress. The point is, whether, without a previous |§vy, the demand for rent, due at the time of the application, accompanied by a subsequent distress, followed the property as an incumbrance or lien into the hands of the trustee. The design of the law was to prevent creditors from acquiring liens after the application, and to deny preference to claims which had not become liens before.

If a distress warrant be regarded as process, it is excluded by the last words of the section, having been'levied too late; and if rent is pot q lien or incumbrance, ¹⁵⁷ the present claim is not protected by the previous clause. We consider this section as equivalent to a denial of the preference asserted on the part of the appellee. We do not think that this view of the subject deprives the landlord of any peculiar right. The law has granted him a remedy enjoyed by no other class of creditors.

If he fails, when entitled, to avail himself of it, he has no more reason to complain, if loss results, than has a judgment creditor who neglects to sue out his fi.fa. and have it laid before his debtor becomes an insolvent petitioner. As happens in other cases, the landlord here has lost his preference by delay, and we cannot relieve him without disregarding what we take to be well settled principles of law. The order ratifying audit No. 2 must be reversed, and audit No. 1 ratified and confirmed, according to the case stated; but costs will not be allowed in this court. Order reversed.

Mason, J., dissented and delivered the following opinion. This case comes before us upon an agreed statement of facts, which in substance are as follows: That John B. Snouffer, on .the 3rd of August 1852, petitioned for the benefit of the insolvent laws; that A. T. Snouffer was appointed his trustee, accepted the trust and gave bond; that an order was passed by the circuit court to sell the property of the insolvent after giving notice, &c., upon terms, &c.; that the trustee did give the notice, &c., and on the 30th day of August 1852, sold all the property of the insolvent to Miller and Snouffer, &c.; that much of said property consisted in growing com and wheat in the straw; the corn and wheat were not delivered to the purchasers, but remained upon the premises in the possession and under the control of said trustee; that said insolvent had rented the farm, where the wheat and corn was grown and where it was at the time of the distress, from Charles C. Tucker, under a written lease; that a year’s rent was due on the 1st of July 1852, amounting to $958.05; that on the 1st of September 1852, the landlord, by his agent, by virtue of a warrant of distress, seized the property of the insolvent afore - ¹⁵⁸ said, and actually sold the said corn and wheat to pay said sum of $958.05 rent, while said corn and wheat were on the said premises in the possession and under the control of said trustee, &c. aIt is further agreed, that if this' court shall be of opinion, upon this statement and the proceedings of the case, that said Tucker, by Robert Boone, his agent, had no legal right -to .seize and distrain and sell the said property of the insolvent petitioner, as aforesaid stated, in the custody and possession of the said insolvent’s trustee, under and by virtue of said distress warrant, to pay the full amount of said rent due to Tucker on the-first day of July 1852, in exclusion of the judgment creditors of the insolvent petitioner, then, and in- that case, the report No. 1 of Grayson Eichelberger, the special auditor, made in this case under the instructions of the*counsel for the judgment creditors, shall, by the judgment of this court, be ratified and confirmed, and the report of said auditor No. 2 be rejected. But if this court, on the contrary, shall be of opinion that the said'Tucker, by his agent, Robert Boone, had a legal right to seize, distrain and sell said property, by virtue of said distress warrant, which was in the custody and possession of the said trustee, as stated, and thereby obtain a priority of right over the judgment creditors, as claimed and shown by report No. 2 of said special auditor, that then said auditor’s report No. 2, made under the instructions of the said trustee’s counsel, shall be ratified and confirmed by the judgment of the court, and the auditor’s report No. 1 rejected; and that either of the parties may appeal to the Court of Appeals of this State, from the judgment of this court, and all the proceedings on said judgment shall be staid until the determination of such appeal.” This case was submitted to the circuit court upon the said statement of facts; and the said circuit court, on the 2nd day of June 1856, ordered and decreed, that in conformity to the.written agreement of the counsel, the auditor’s report, No. 2, in the case, be finally ratified and confirmed, and that the trustee pay out the funds as distributed therein. It will be observed that audit No. 1, disallowed the claim for rent as a preferred debt against the insolvent’s estate, while ¹⁵⁹ audit No. 2, was based upon the theory, that the landlord’s right to distrain and sell were not impaired by the insolvent’s application, and accordingly it deducted from the assets in the hands of the trustee, the sum of $1588, being the amount of the sale under the distress for rent.

Subsequently, upon the argument in this court, the counsel entered into a supplemental agreement, the effect of which was to authorise this court to order a special audit, in the event of its appearing, that neither of the accounts stated below was based upon correct principles. Independent of the supplemental agreement, I have no hesitation in saying, as my opinion, that while counsel can agree among themselves as to the particular facts to be submitted, and thus to confine the court to those facts in the opinion they are to pronounce, yet they cannot require the court, by any agreement into which they may enter, to draw any particular conclusions or deductions from those facts. The judicial mind must be left free to draw its own conclusions upon the law, as applied to the facts of each case, whether they be agreed upon, or elicited in the usual way, from evidence regularly offered. Hence it was not in the power of counsel in this case to confine the court to the adoption of either audit No. 1 or No. 2, if neither was deemed to rest upon sound legal principles; and, if the supplemental agreement was out of the way, I should still have had no difficulty in ordering such other account to be stated as would conform to our views, notwithstanding the original agreement sought to limit us to the two before us.

Upon the facts, as thus set forth, the first question which arises is, was the property, which was in the possession of the insolvent’s trustee at the time it was seized under the distress, in the custody of the law ? It is an old and well settled rule of the common law, that goods already in the custody of the law cannot be distrained, and if the possession in this case, by the trustee,