Rowland v. Goldsmith , 2 Grant 378 ( 1858 )

• The opinion of the court was delivered June 21, 1858, by

Woodward, J.

— Liability to distress is the criterion for determining the landlord’s right to participate in the proceeds of a sheriff’s sale of goods in execution. If they are goods which the landlord might have distrained for rent, he may come in, by notice to the sheriff before distribution of proceeds, and claim, not exceeding a year’s rent; but if the sale be of goods which are exempt from distress, he has no rights, and cannot become a party to the distribution. The landlord here had no right of distress, because his rent accrued subsequent to the 4th of July, 1849, on a lease which would seem, from the paper book, to have been made after that date, and because these goods had been set apart to the debtor by proceedings had on the execution of Roher, Graeff & Darling. As against all creditors subsequent to that date, the debtor held the goods, by virtue of the Act of 9th April, 1849, exempt from levy and sale on execution and distress for rent; and they were subject to Rowland’s levy only, because his judgment was founded on a debt contracted prior to the 4th July, 1849. Because he had no right to distrain,' the landlord has no footing in court on a question of distribution, and the proceeds of sale must be applied to Rowland’s execution. The judgment of the Common Pleas in discharging the rule taken by plaintiff, and in making absolute that taken on behalf of John Green, is reversed, and the money in amount is ordered and decreed to be paid to F. S. Rowland on his judgment and execution.