Ege against Ege, 5 Watts 134

The opinion of the court was delivered by Rogers, J. It would be inconsistent with the nature of the contract between George and Peter Ege, that George Ege should have the right to distrain for the arrearages of rent. It is agreed between them that Peter should appropriate the rent, as it became due, to the payment of the debts of George. He is also vested with power to pay debts before the rent becomes due, or, if need be, to assume the responsibility of paying them.

In case of mismanagement, in relation to the trust, the remedy would not be by distress, but by an action on the agreement; for the rent is not payable to George, but to his creditors, and the right of appropriation is in the lessee, who is clothed with ample power by the lessor, to manage the estate, under the stipulations in the lease. As George Ege has not the right to distrain, neither is'he entitled to any portion of the money raised by the sheriff’s sale, as is decided in Litchenthaller v.

Thompson, 13 Serg. & Rawle 157, and this removes the objection that there are two landlords who claim the fund, and supersedes the necessity of deciding upon conflicting claims of a first and immediate landlord. But had Peter Ege a right to distrain ? This depends upon the nature of the agreement between him and the sub-tenant. Was this a contract or assignment of the whole term, or an under-letting from year to year, with a reversionary interest in the lessor? For if a lessee for years assign over his whole term, reserving a rent, without a special clause of distress, he cannot distrain for.the rent so reserved.

Bradby on Distress, 1 Law Library 68, But the law is otherwise, if this was a lease from year to year. The nature of the lease depends on parol testimony, which the court left to the jury. The evidence is loose and unsatisfactory, but still, we 'cannot say the jury were wrong in finding that the lease was, in the first instance, for one year, and that the estate was held under the same terms and conditions from year to year.

It follows that Peter Ege was entitled to all legal means to enable him to collect the rent, by distress or otherwise, to comply with his agreement with his lessor, and to fulfil the engagements with his creditors. It is said that the rent is uncertain, and that certainty is essential to the nature of a rent; that it must be certain in its quantity, extent and time of payment, or at least be capable of being reduced to such a certainty, and, therefore, that a rent, reserved after the rate of 18 pounds a year, was held-bad for uncertainty.

But in the case cited, the contract neither specifies the amount of the rent, the nature of it, whether in kind or money, nor the periods of its payment; in all these particulars it differs from the present case. The lease is for 7000 dollars a year, reducible, it is true, to 6000 dollars, in a certain contingency. The rent is payable in money, and is payable yearly, for where the rent is ascertained, a general reservation makes it payable yearly. Cole v. Sury, Latch. 264.

Besides, the rent is undoubtedly certain, to the amount of 6000 dollars, which the tenant must pay, at all events, and the landlord limits his claim to that sum. By the common law, when an execution was levied upon the tenant’s goods, the landlord lost his rent, and could not enter to distrain, for the execution took place of all debts, except specific liens, and the goods taken by the sheriff, being in custodia legis, could not be distrained.

For remedy of this, and in aid of the landlord, by the statute of 8 Anne, ch. 14, it is made-imperative upon the sheriff, before he removes the goods, taken in execution, to pay to the landlord one year’s rent. But the act of the 21st of March 1772 directs, that chattels levied in execution shall be subject to the payment of one year’s rent for the premises on which they shall be seized,and that the sheriff shall, after the sale of the goods, pay to the landlord, or other person empowered to receive the same, such rent so due, and apply the overplus thereof, if any, towards satisfying the debt and costs.

Under the statute of Anne, if the sheriff removes the goods from the premises, as is the practice, in all cases, before sale, without having handed over to the landlord one year’s rent, he will be_ liable to an action on the case, founded on the statute. In order, however, to charge him as a wrongdoer, it has been held that the landlord must give notice of his claim, and the notice must be given under the statute of Anne, before the removal of the goods.

But in Pennsylvania, under our statute, the sheriff is not estopped from removing the goods, and he is protected, provided he pays over to the landlord one year’s rent, or the landlord neglects to give notice of his claim in proper time. Notice or knowledge of the landlord’s claim is «et required for the protection of the sheriff, who otherwise may be subjected to an action, on the statute, without having any knowledge that the rent is in arrear. In Mitchell’s Executors v.

Stewart and another, 13 Serg. & Rawle 295, it is held, that a landlord claiming to be paid his rent out of the proceeds of an execution, is bound to give notice thereof, before the execution is returned.- It is intimated that the landlord loses his lien, unless notice is given before the time the writ is returnable; but the case called for no such allusion, and the opinion is founded on the erroneous assumption, that the act was intended for the benefit of the execution creditor, as well as the landlord and the sheriff The levy, removal and sale of the goods, are notice to the landlord of the execution, and hence, when he claims arrears of rent, it is but equitable that he should give notice to the sheriff of his claim, or at least that the sheriff should have knowledge of its.existence.

It would jeopard the rights of the landlord to fix any other period than the sale, as the limit of his right to give notice. In practice, it is usual to sell goods taken in execution, after the return day of the writ. The sheriff is directed, by the act, to pay over, after the sale, one year’s rent to the land*lord; it would therefore seem that all the purposes of the act are ansvyered, if notice is given at any time before the money is paid over; at any rate, there is no reason for confining it to the return day, without regard to the sale of the goods, or the actual return of the writ.

These questions will only arise when the "debtor is insolvent, and but little mischief can be apprehended from this construction of the act to execution creditors, who generally levy upon all the property of the debtor. It is, therefore, of but little importance to them, whether the notice is given before the return of the writ, or is delayed until the sale, and before payment of the money. We are also of the opinion that the landlord is entitled to a whole year’s rent, but it cannot exceed one year’s rent. This he is entitled to without regard to the time the lease commenced, or the time of the sheriff’s sale.

This construction has been repeatedly given to the act. Judgment affirmed.