The weekly clarion. [volume] (Jackson, Miss.) 1863-1882, 1875-06-16
Decision fm she y -
Cfrcmat Camrf.
In the Circuit Court Of the United STATES
Southern District of Mississippi.

Southern District of Mississippi.
J. E. Austin On petition for
-av;atr ~ decree
IL. E. O'Relly. Of D;strict Court
Assignee of Steele & Co, Ia Rlnkruptcy.
Before the Hon. Joseph p. Bradley, As
sociate Justice of the Supreme Court,
and Hon. Robert A. Hill, District
Judge.
e. d. Clarke, ESQ.,, counsel for PlaintIft ;
w. B. Pittman, Esq, counsel for AS
signee.
Opinion of the Court by Justice Bradlay,
chill, j., not sitting in this cause.
This case depends on the question
whether, in the State of Mississippi, a
landlord, whose tenant becomes BANK
rupt before any attachment has been IS
sued for rent, is entitled to priority on
payment, over the general creditors. ms
question must be decided in view OF the
provisions of the Bankrupt Law, and the
peculiar rights of landlords in reference
to enforcing payment of rent IN Mlssls-
sippi. The Bankrupt Act, (Sec- 49,
declares that the assignment shall relate
hack to the commencement OF proceed
ings in bankruptcy, and that, by opera
ton of law, the title to all property and
estate, both real and personal, OF the
bankrupt, shall vest in the assignee, al
though attached on mesne process, and
shall dissolve any such attachment made
within four months next preceding. The
| inchoate lien obtained by an attachment,
and not perfected by judgment, is thus
rendered null by the proceedings In bank
ruptcy. But perfected liens are protected
1t is provided by the same section, that
the assignee. under authority of the court,
NAV redeem or discharge any mortgage,
pledge, deposit or lien,. and tender per-
| Torrance of the condition thereof, or
sell the property subject thereto and
section 20 of the Bankrupt Act provides
that when a creditor has a mortgage,
pledge, or lien, for securing his debt, he
shall be admitted as acreditor against the
general estate, only for the balance due
him after dedncting the value of the
property on which he has such security,
unless he consent to release it.
| These provision show that all liens
except such inchoate ones as may arise upon
an attachment, are protected by the law
But how do these provisions operate
upon the peculiar lien, or right of distress,
civ en- to u landlord for his rent? That
right, at common law, was founded
on the principle that the landlord retained
his ownership, not only in the land, but
in so much Of the produce thereof as was
reserved by him for its use. Such re-
served portion, or redituS was cOnsid-
cred as belonging to him by virtue of his
original ownership; but not being sePa-
rated from the rest of the profits, he
could only sieze reasonable amount as a
distress or security to compel the pay
ment or appropriation of his stipulated
portion. When the render consisted of
! personal service, such service was re-
garded as in lieu of the profits of the
land, to which, until the service was
rendered, the landlords qualified property
| and right of distress extended as in the
case of actual rents The Legislature
afterwards extended the right of distress
to other things besides the profits of the
land; and as far as the right extended,
the principle of the latent or qualified
property of the landlord in the subject
of distress, accompanied it. Other leg
islation enabled him to sell the goods
distrained, in order to realize the amount
of his rent, if the tenant proved refrac-
tory. In some States it is provided that,
instead of making the distress himself,
the landlord must procure q warrant
from magistrate or court, to be executed
by an officer. But this regulation of the
mode of exercising his right, does not
affect the nature of the right itself.
1t is common to call the right a lien,
and yet it is not strictly such for it does
not attach to any specific article of prop
erty. The tenant, if farmer, may, in
due course of business, sell produce, or
cattle, or other things; and if mer-
chant, he may in the same manner sell
merchandise, and the sales, if made in
good faith, will be valid, and the property
sold will be free from the landlords right
of distress, if removed from the demised
premises, and, in most States, without
such removal. But if the sale be made
for the purpose of depriving the landlord
Of his right, he may, under the English
statutes, and by the statutes of most
States, follow the property, within rea-
sonable time after its removal.
Now, if the landlords right were a
strict lien. no valid sales could be made
at all. Still, being commonly called a
liCnI anu a DCSAAldI 4tHhI III lhC
nature of a lien, which is greatly relied
on as an essential condition of all leases,
and the subversion of which would work
great injustice, and would in the end OPP
crate prejudicially to the interests both
of the tenants and their creditors, by
inducing landlords to require onerous
conditions for their security, the Supreme
Court of the United States, and most of
the District and Circuit Courts, have
regarded it as fairly to be classed as a lien
within the true intent and meaning of
the Bankrupt Act, and have allowed the
landlord priority over the general cred
itors, to the extent of the goods subject
to his right of distress.
This right of the landlord has been
regarded as peculiarly entitled to priority
when by statute an execution creditor of
the tenant is prohibited from removing
the goods until he has paid the landlords
rent, or a reasonable amount, generally
years rent, which may have accrued.
Thus, in Longstreth VS.. Pennock, 20
Wall, 575, the Supreme Court places
special emphasis on this fact.
In Mississippi, it is true, the landlord
is obliged to sue out an attachment for
the purpose of effectipG z distress for
rent; but when the attachment is sued
out, his rights are the same in effect as
those of the landlord at common law.
That they are founded ON and grow out
of those rights is evident fFom the fact
that he is not compelled to pursue his
claim to judgment, like other creditors.
The attachment in his case is in the ma
ture Of an execution or, more properly |
speaking, of distress. He has the same |
right of priority over execution creditors,
and the same right to prevent the reno
val of goods. and to follow goods clandas-