If the fact were material in the decision of this case, we should say that the clear preponderance of the evidence is to the effect that the distress warrant issued by Eames, the landlord, for rent in arrear from his tenants, Gustorf & Co., was levied before any possession was attempted to be taken of the goods and chattels in question by Mayo, the assignee of Gustorf & Co., under the voluntary assignment made on the same day by the latter to him. In Dod v. Monger, 6 Mod. 215, it was declared as law by Lord Holt, that if a landlord come into a house and seize upon some goods as a distress in the name of all the goods in the house, that will be a good seizure of all. Taylor says: “ When a landlord makes a distress, he may seize upon any article in the name of all the goods in the house; and a declaration by him that nothing should be removed until his rent was paid, has been held sufficient to authorize him to follow an article which has been removed.” Taylor on Landlord and Ten. Sec. 578. Here the articles were nearly all ponderous. Each one was looked at and listed, and the seizure of all was openly declared. This was all that reasonably could have been done, under the circumstances, and we are of opinion it constitutes a sufficient seizure by the landlord as for a distress.
But the evidence fails to show by a clear preponderance that this seizure was before the deed of assignment from Gustorf & Co. to Mayo, for the benefit of the creditors of the former, was filed for record; and the court below directed the jury that if it was not made before the deed of assignment was filed for record, then such seizure was inoperative as against the rights of Mayo, under the assignment. This proposition is clearly embodied in the instructions given by the court to the jury on behalf of Mayo, the plaintiff below, and by the argument in his behalf here. It seems to be based upon a supposed effect of the statute approved May 22, 1877, concerning voluntary assignments.
Although the first section of that act requires all such assignments to be duly acknowledged and recorded in the county where the person or persons making the same reside, or where the business in respect of which the same is made has been carried on, yet the most careful scrutiny of all its provisions will fail to discover any declaration contained in the act as to the effect of recording such deed, or anything from which an intent may be inferred that the assignee should be regarded as a bona fide purchaser for value, or otherwise than as a trustee — a mere volunteer, taking the property subject to all liens to which it was liable when the assignment was made. That there was no intention to change the character or position of such assignee from what the Supreme Court had declared it to be before that act was passed, is manifest from the provisions of the eleventh section, which expressly declare that Ms power of disposition of the property of the trust estate shall be only such as the assignor possessed at the time the assignment was made, except as to real estate, public notice being required as to that.
In O’Hara v. Jones, 46 Ill. 288, which was a case where the landlord distrained after a voluntary assignment had been made by the tenant, and the assignee was in possession on the demised premises, the court, after announcing the rule that at common law the landlord had a lien on the goods of his tenant on the demised premises, said: “ The rule of law is well settled that an assignee, to whom property is transferred for the payment of the assignor’s debts, takes it as a volunteer, subject to all liens to which it is then liable. He pays nothing for it, but receives it on a naked trust, uncoupled with an interest, and simply holds it to be applied on the trusts to which the property has been appropriated. If liens exist upon the property when the assignment is made, they must be first discharged in the order of their priority, and the remainder, thus freed from the liens, must then be applied according .to the trusts, as declared in the deed of assignment. Such a trustee is not a bona fide purchaser.”
This case recognizes the doctrine that by the common law the landlord has a lien on the tenant’s goods and chattels while they remain on the demised premises, which is re-affirmed in. Hadden v. Knickerbocker, 70 Ill. 677, but its correctness has been questioned.
In Williams v. Leper, 3 Burrows, 1886, Taylor, a tenant to the plaintiff, being in arrears £45 for rent, and insolvent, conveyed all his effects for the benefit of his creditors. The assignees employed Leper, the defendant, as a broker, to sell the effects, and he • accordingly advertised them for sale; On the morning of the sale, Williams, the landlord, came to distrain the goods in the house. Leper, having notice of such intention, promised to pay said arrears of rent if Williams would desist from distraining, and he thereupon did desist. Leper refusing to pay, suit was brought on the promise. At the trial there was a verdict for plaintiff, and on motion to set it aside, it was urged that the-promise was void for not being made in writing. Lord Mansfield said: “ The landlord had a legal pledge. He enters to distrain; he has the pledge in his custody. The defendant agrees that the goods shall be sold, and the plaintiff paid in the first place. The goods are the*fund. The question is not between Taylor and the plaintiff. The plaintiff had a lien upon the goods. Leper was a trustee for all the creditors, and was obliged to pay the landlord, who had the prior lien.”
In Ex parte Grove, 1 Atk. 104, Lord Hardwicke clearly recognizes a landlord’s claim for rent as a legal lien, and in Ex parte Plummer lb. 103, he held that, after a commission of bankruptcy was taken out, and the messenger in possession, the landlord might distrain for his whole rent, not only after assignment, but even after a sale by the assignees, if the goods are not removed from but remain upon the demised premises. So, also, is the landlord’s lien for rent in arrear, while the goods remain on the demised premises recognized and affirmed by Puller, J., in Buckley v. Taylor, 2 T. R. 600. It is not very probable that all these three eminent judges of the English bench were mistaken as to a common law question so frequently before the courts of that country. And Taylor, a modern anthor of rare accuracy, speaking upon this subject, says: “ Bent is a lien upon the tenant’s goods, so long as they remain on the demised premises; and at common law the right was gone the moment they were removed, for the landlord had parted with his lien; possession, or what is equivalent to possession, being necessary to the existence of a lien.” Taylor’s Land, and T. Sec. 577.
The goods remaining on the premises, to which the landlord has a right of entry when rent is in arrear, is equivalent to a pledge in possession, and that is what Lord Mansfield meant in giving judgment in Williams v. Leper, sv/pra.
The term of Gustorf & Co. not having expired, rent being in arrear, and the goods remaining on the demised premises, Eames had a lien upon and right to distrain them, although the voluntary assignment by the tenants to Mayo had been executed, accepted and recorded before the seizure on the distress warrant, on the ground that there was a common law lien — a legal lien, as Lord Hardwicke called it, in favor of the landlord, and Mayo’s rights under the assignment being only those of a volunteer, they were subordinate to such legal lien of the landlord. Aside from that, the lien created by an express covenant in the lease between Eames and Gustorf & Co., was valid in equity as between Eames and such volunteer. Legard v. Hodges, l Vesey, Jr. 478; Kellum v. City of St. Louis, Sup. Ct. United States, Oct. T. 1879, unreported. According to these authorities, the personal ■ property on the demised premises would, by virtue of the provisions in the lease giving the lessor a first valid lien as security for the rent, be regarded as a trust estate in the hands of Mayo as respects the rent in arrear.
The instructions of the court were erroneous, upon the ground that Eames had the legal right to distrain, the goods being on the demised premises, regardless of the question whether the the deed of assignment was first recorded. The judgment of the court below will be reversed and the cause remanded. ■
Beversed and remanded.