Fee v. Lutz - Case Law

Opinion by

Trexler, J.,

The goods of the plaintiff were levied upon by virtue of a landlord’s warrant. The plaintiff claimed that the distress was illegal and brought this action of replevin to recover possession of the goods distrained. The court below entered judgment for want of a sufficient affidavit, of defense.

The pleadings disclose that a lease of the premises upon which plaintiff’s goods were found was made by the life tenant, Mary M. Kelly°to Patrick Toomey. The life tenant died and Toomey continued in possession and paid rent to the agent who had acted for the life tenant and for the remaindermen. Toomey was succeeded in the occupancy of the premises by Bernard Fee, the plaintiff. The affidavit of defense and the supplementary affidavit of defense allege a tenancy having its inception in the lease made by the life tenant, Mary M. Kelly, and a levy “made by virtue of a written lease for said premises dated, April 1, 1906,” made by her “due for rent...... under the terms of said lease,” a copy of said lease being attached to each of the affidavits. It is further stated that “said lease is still in force.”

When the life tenant died, the lease made by her ter

Page 190

minated. There can be no question as to that. When Toomey continued in possession whether as tenant at sufferance or at will, the tenancy under which he held at that time had its beginning at or after the death of the life tenant. The relation then existing was between him and the remaindermen. The old lease having ended at the death of the life ténant, there could be no legal distress made under it for rent thereafter accruing. The owners of the property may have had the right to distrain Fee’s goods, but if they had, the source of that right should have been disclosed in their affidavits. Having put their right to distrain upon a lease which was no longer operative, the court had to decide that the distress was illegal. As the defendants showed no legal right to seize plaintiff’s property, judgment was properly entered against them.

■ Judgment affirmed.