Ridgely’s Notebook IV, 50
High Court of Errors and Appeals of Delaware.
June 19, 1822.
Writ of error to the Justices of the Supreme Court, Kent County.
Brinckle for plaintiff in error, who was plaintiff below. Hall
for defendant.
This suit arose on a sale made by the sheriff of a crop of Indian corn, subject to the landlord’s claim.
After a year’s rent had become due, an execution against Selby, the tenant of Cochran, was delivered to the sheriff, who, by virtue thereof, levied upon the goods of the tenant, and, among others, upon a crop of corn. Cochran distrained on the goods thus taken in execution of the last year’s rent, which had become due. He sold and made his money. The sheriff on the same day, after the landlord’s sale, sold under the execution the residue of the goods etc. The landlord claimed of the sheriff before the sale two-fifths of the corn, the rent for that year, which had not yet become due, and the sheriff sold the same to Biddle, the defendant, subject to the landlord’s claim. Biddle refused to pay the two-fifths of the corn to Cochran, the landlord, on the ground that the landlord was entitled to recover out of the goods seized and taken in execution but one year’s rent, and that as he had made by distress out of the goods the last year’s rent, neither the sheriff nor the purchaser was bound to pay him the accruing rent.
The Supreme Court had decided that the landlord was entitled to the last year’s rent only, to be recovered or made out of goods seized or taken in execution by the sheriff, and that as the landlord had levied and sold, by distress, of the goods taken in execution, sufficient for the last year’s rent which had become due, the landlord had no claim on the corn sold to Biddle, and consequently that Biddle was not bound to pay him any part of said corn.
Page 31
This writ of error was brought to review this decision; and this Court were unanimously of opinion that a landlord cannot recover by distress and sale, or from the sheriff or purchaser, out of goods taken in execution, both the last year’s rent which had become due, and the accruing rent; that on the recovery of the last, or of the accruing year’s rent, he has no claim on such goods taken in execution, for the other year’s rent.
Judgment affirmed.