This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
As before stated, the remedy by distress existed at common law in the case of a rent service, unless the rent and the seignory or reversion became separated, and also in the case of a rent charge.55 In England the right of distress has been given by statute in the case of all rents, and consequently rents seek no longer exist there as a distinct class.50 The question whether this statute is in force in any particular state has been seldom passed upon,57 this being a natural result of the in-frequency of rents other than rents service reserved on leases for years.
53. Ante, Sec.Sec. 74-89.
54. 2 Tiffany, Landlord & Ten. Sec.Sec. 193a, 274d, e.
55. Ante, Sec. 404.
56. 4 Geo. 2, c. 28, Sec. 5 (A. D. 1731).
57. In Illinois the English statute was, in a quite early decision, recognized as in force (Penny v. Little, 4 I11. 301), while a different view was taken in New
The remedy by distress lias not been favored in this country, it being often regarded as affording opportunity for injustice and oppression, and as unfairly discriminating in favor of a particular class of creditors. In some states it has been abolished by statute,58 and in some the courts have refused to recognize it as an existing part of the law.59 The remedy, under its common-law name, still exists in a number of states; but even in those states it is quite frequently modified by statutory provisions, the general tendency of which is more or less to withdraw the control of the proceedings from the landlord and to vest it in public officials, thus assimilating it to the process of attachment.59a In New England the remedy of attachment on mesne process has superseded that of distress.
Originally, the remedy by distress merely enabled the landlord to seize the chattels on the land, and hold them as a pledge for the payment of rent;60 but by statute the landlord was authorized to sell the goods levied upon, and to apply the proceeds on the rent,61 the proceeding being thus changed from one to secure the rent to one to collect it. Furthermore, the seizure of the goods was formerly made by the landlord himself; but at the present day, in most jurisdictions, the actual levy is made by an officer of the law.62
It has been quite frequently stated that to support a distress the rent reserved must be certain or
York (Cornell v. Lamb, 2 Cow. (552).
58. 2 Tiffany, Landlord & Ten. Sec. 325.
59. Folmar v. Copeland, 57 Ala. 588; Herr v. Johnson, 11 Colo. 393, 18 Pac. 342; Crocker v. Mann. :: Mo. 472, 26 Am. Dec. 684; Bohm v. Dunphy, 1 Mont. 333; Deaver v. Rice, 20 N. Car. (4 Dev. & B. Law) 567, 34 Am. Dec. 69; Smith v. Wheeler, 4 Okla. 138, 44 Pac. 203,
59a. See 2 Tiffany, Landlord & Ten. Sec.Sec. 325-346. The gist of the statutory provisions in the various states are conveniently presented in a note in 2 Cornell Law Quart. Rev. at p. 357, by D. It. Perry, Esq.
60. Co. Litt. 47; 3 Blackst. Comm. 614.
61. 2 Wm. & Mary c, 5 (A. D. 1690).
62. 2 Tiffany, Landlord & Ten. Sec. 336.
2 R. P.-21 capable of reduction to a certainty,63 and occasionally reasons have been stated for this requirement, connected with the method of proceeding at common law.64 But, it is conceived, the true and sufficient ground for the requirement of a certain rent as a basis for distress is that, as before stated,65 there is no such thing as a rent which is not certain or capable of reduction to a certainty. The statement of this requirement has occasionally been made as a justification for a holding that there was no right of distress although there was a right of recovery for use and occupation.69 The reasonable value of the use and occupation, though recoverable by action, is not rent, and it is for this reason, rather than because the amount is uncertain, that it cannot be recovered by distress.
- Who may distrain. Since the right of distress is based upon the relation of tenure, a distress for rent reserved on a lease can be made only by one having the reversion, that is, the landlord.67 Consequently, at common law, a lessor who has disposed of the reversion, retaining the rent, cannot distrain,68 though he may do so, it seems, in some states, by force of a statutory provision giving the right of distress to persons entitled to rent, as he might in any state in which the English statute,68a giving the right in the case of a rent seek, may be regarded as in force.
63. Regnart v. Porter, 7 Bing. 451; United States v. Williams, 2 Cranch. C. C. 438, Fed. Cas. No. 16,710; Smoot v. Strauss, 21 Fla. 611; Marr v. Ray, 151 111. 799, 26 L. R. A. 799, 37 N. E. 1029; Briscoe v. Mcehveen, 43 Miss. 556; Smith v. Fyler, 2 Hill. (N. Y.) 648; Jocks v. Smith, 1 Bay, (S. Car.) 315.
64. .See 2 Tiffany, Landlord & Ten. Sec. 327d.
65. Ante, Sec. 411, note 99.
66. Stayton v. Morris, 4 Har. (Del.) 224; Smoot v. Strauss,' 21
Fla. 611; Tifft v. Verden, 19 Miss. (11 Smedes & M.) 153; Valentine v. Jackson, 9 Wend. (N. Y.) 302; Wells v. Hornish, 3 Pen. & W. (Pa.) 31.
67. Sims v. Price, 123 Ga. 97, 50 S. E. 961; Marr v. Ray, 151 111. 340, 26 L. R. A. 799, 37 N. E. 1029; Patty v. Bogle, 59 Miss. 491; Grier v. Mcalarney, 148 Pa. 587, 24 Atl. 119; Mckenzie v. Roper, 2 Strob (S. Car) 306.
68. Litt. Sec. 226.
68a. Ante, this section, note 56.
At common law the executor or administrator of a deceased owner of a rent had no right to distrain for rent which belonged to him as having accrued in the lifetime of such owner, but by St. 32 Hen. VIII. c. 37, Sec. 1, the right of distress was given to the executors and administrators of tenants in fee, fee tail, or for term of life.69 This statute has, however, been held to give no right of distraint to the executor of a tenant of land in fee who demised the land for years, reserving a rent,70 and, on this construction of the statute, an executor or administrator has, in jurisdictions where there is no statute to the contrary, no right to collect by distress rent due by a tenant of his decedent under a lease for years. There are in a few states statutes expressly giving the right of distress to the executors or administrators of a deceased landlord, or giving them the same remedies for the collection of rent as the decedent had.