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ARTICLE II.

Rent-Mode and Manner of Recovery.

Rent-how recoverable

§ 1. Rent may be recovered by distress or action. for § 2. Unless the contract be in writing, a landlord may, by Satisfaction use and occupaaction, recover reasonable satisfaction for the use and occu- tion-when and pation of his land. If, on the trial, a verbal contract be

how recoverable.

3. But one whose entry on land is illegal is not a tenant, and is not entitled to notice to quit. (Petty vs. Malier, 15 B. M., 606.)

4. The reservation of rent in some form, and allegiance to the title, are the distinguishing characteristics of a contract by which the relation of landlord and tenant is created. (Goldsberry vs. Bishop, 2 Duvall, 144.)

5. A tenant in possession for years, who has not sought to shelter himself under an adversary title, must be notified of the termination of the tenancy before an action is commenced against him for the recovery of possession. But if such action is dismissed for want of notice, in a subsequent action for the same purpose, the court will regard the prosecution of the former action as dispensing with notice to terminate the tenancy. (Cornellison vs. Cornellison, I Bush, 149.)

6. The landlord reserved the right "to re-enter and annul the lease for non-payment of any month's rent within ten days after it became due." By consent of the landlord, the tenant sublet the premises. Failing to pay the rent for thirteen days, the landlord induced the sub-tenant to attorn to him. The prior tenant paid the rent due, and brought an action to be relieved from the forfeiture. Held-The landlord's entry and retention of possession were legal rights, but equity considers such general stipulations for entry by the landlord as intended for securing the rent, and not for forfeiting the lease, if the tenant shall have acted in good faith, and shall promptly pay the rent when demanded, or before the landlord suffered loss or inconvenience from delinquency. The decision of the chancellor remitting the forfeiture was affirmed. son vs. Jones, &c., I Bush, 173.)

(Wil

7. If a sub-tenant is accepted by the landlord as his immediate tenant or lessee while in possession, and is recognized by the landlord as his tenant, the landlord thereby releases and discharges his original tenant from responsibility for rent which might accrue after such acceptance. (Stimmel, &c., vs. Bryant, 2 Bush, 282.)

8. If the landlord retains control over the apartments occupied by one in his employ, although the latter may keep a separate establishment and table, he will not be a tenant. (Waller vs. Morgan, 18 B. M., 143.)

9. As to the right of the tenant to remove buildings, &c., under his lease, see 2 Bush, 256, Gray vs. Oyler.

10. The mere fact that a tenant remains in possession after the expiration of his lease cannot be construed into a refusal to deliver possession. (Thompson vs. Marsh, 4 Bush, 423; Shepherd vs. Thompson, 2 Bush, 176.) But see article four of this chapter.

II. A judgment for double rent is unauthorized when the evidence fails to show that there was a demand, and a refusal to restore possession of the premises, or some act of the tenant equivalent to an express refusal. (Thompson vs. Marsh, 4 Bush, 423; Beynroth vs. Mandeville, 5 Bush, 584.)

12. Fixtures, which a lessee has annexed to the freehold, if movable at all, must be removed before the expiration of the tenancy. (Thomas vs. Crout, 5 Bush, 37.)

13. The tenant entered under a parol agreement that he should have the use of the land during his life, and made permanent improvements, which at his death were to revert to the owner of the land. The owner notified the tenant to surrender, and sued for possession and rent. Held-The tenant was entitled to the value of his improvements, and a lien on the land for the amount thereof, with interest thereon from the date of the notice to quit, and that he was liable for rent from that date. (Reed vs. Lander, 5 Bush, 21.)

14. The tenant made certain improvements, in consideration of which the landlord assured him that he should have the premises so long as he paid a stipulated annual rent. Held-That the landlord could not evict the tenant without accounting for the improvements. (O'Neal vs. Orr, 5 Bush, 649.)

15. A tenant is bound to pay the rent though the premises should be destroyed by inevitable casualty, unless by his contract he has provided against such liability. (Hellburn vs. Mefford, 7 Bush, 169.)

16. Unless the relationship of landlord and tenant existed at some period between the par

Rate of interest on rent.

Attachment for rent, proceedings in respect of.

proven, whereby a rent certain in amount was reserved, the plaintiff may nevertheless recover; the verbal contract being regarded as evidence of the amount recoverable.

§ 3. Rent shall bear six per cent. per annum interest from the time it is due.

proceedings in respect of.

§ 4. No landlord shall issue his own distress warrant. Distress warrant, When rent is reserved in money, he may, before a justice of the peace, police judge, or a judge of a county court, in the county where the land lies, by himself or agent, make oath to the amount of rent due him and in arrear, and thereupon such officer shall issue a distress warrant, directed to the sheriff, marshal of the town, or a constable of the county, authorizing such officer to distrain the personal estate of the tenant for the amount due, with interest and costs. The personal estate of a sub-tenant found on the premises shall also be liable to the distress. But if the tenant has removed his property to another county, the distress may be directed to such county.(a)

§ 5. When any person who shall be liable to pay rent, whether the same be due or not, and whether the same be payable in money or other thing, if the rent be due within one year thereafter, the person to whom the rent is owing,

ties, there can be no implied promise to pay rent; and without the existence of such a promise, either expressed or implied, the plaintiff cannot maintain his action at law, and recover rent for the use and occupation of his land. But if the defendant holds under an oral contract of purchase, and by refusing to comply with its conditions has forfeited his equitable rights growing out of the same, the vendor may maintain an action to recover the possession, and in that or a subsequent action may recover for mesne profits. (Richmond & L. T. R. Co. vs. Rogers, 7 Bush, 532 and 595.)

17. See the case of Kyle vs. Proctor, 7 Bush, 493, as to the liability of the surety after the lease has expired.

18. A lessee may bring and maintain an action in his own name against his sub-lessee, and his assignee on the covenant of such sub-lessee to pay rental to him. (Trabue vs. McAdams, 8 Bush, 74.)

19. A lessee being sued for rent may prosecute a cross-action against his assignee to discharge the rent and release him from responsibility. (Ibid.)

(a) If a distress for rent is discharged by a bond, as authorized by section 721 of the Civil Code, the claim distrained for may be litigated in whole or in part, as provided in said section. (Dean vs. Ball, 2 Bush, 502.)

2. The provisions of the Code do not repeal section 28 of article 2, chapter 56, of the Revised Statutes. (Ibid.)

3. That the amount of the rent distrained for was greater than in justice it should have been, will not affect the validity of the replevin bond, and subsequent proceedings thereon; and will not authorize the court to set aside the replevin bond, and sales made under the execution which issued thereon. (Ibid.)

4. The remedy by distress is only available where the rent sought to be recovered is due and payable in money. (Myers vs. Mayfield, 7 Bush, 212.)

5. When the amount of the rent is to be ascertained by arbitration, distress is not authorized, unless the amount which may be claimed has first been ascertained by the arbitration and award of persons selected for that purpose. (Myers vs. Mayfield, 7 Bush, 212.)

or by his agent or attorney, may, before a justice of the peace, police judge, or a judge of a county court of the county in which the tenement lies, make affidavit that there are reasonable grounds for belief, and that he believes, unless an attachment be issued, he will lose his rent; whereupon, such officer shall issue an attachment for the rent against the personal property of the person liable for the same to any county the person suing out the same may desire. But no such attachment shall issue until the plaintiff has given bond, with good surety, to indemnify the defendant, if it appear that the attachment has been wrongfully obtained. (a)

§ 6. All attachments issued under this chapter, for a sum of fifty dollars or less, exclusive of interest and costs, shall be returned before the officer issuing the attachment; and all those for a sum exceeding fifty dollars, and not exceeding one hundred, shall be returned before the quarterly court of the county whence it issued; if over one hundred dollars, to the circuit court; and in either case the proceedings thereon shall be the same as on other attachments according to the Civil Code; and the defendant shall also have the privilege of denying the tenancy, or his liability to pay rent, as stated in the affidavit; and, moreover, may repossess himself of the property by executing bond in a manner similar to that prescribed in the Civil Code of Practice, subject to similar proceedings, if forfeited, as is prescribed by the Code on such a bond.

§ 7. If the owner or holder alien or assign his estate or term, or the rent thereafter to fall due thereon, his alienee or assignee may recover such rent.

§ 8. Rent may be recovered from the lessee, or other person owing it, or his assignee or under-tenant, or the representative of either, by the same remedies given in the preceding sections. But the liability of the assignee or subtenant shall only be for the rent accrued after his interest began.

what court

re

Attachments, to turnable, & herein of proceedings af

ter return.

Alienation by the

owner; right of

recovery of rent

Rent, how recovder-tenant, &c.

erable from un

(a) A statement on oath of the facts is made essential to the issual of an attachment for rent by section 3, article 2, chapter 56, of the Revised Statutes. (Worstell vs. Ward, 1 Bush, 198; Brandt vs. Hyatt, 7 Bush, 363.)

2. An attachment for rent is an original process, obtained not from the court; therefore, if not actually returned on the day of its return, reasonable time should be given to the party to appear and defend, if he has a defense. (Ibid.)

3. An attachment for rent will be quashed if issued before the required bond is given. (Brandt vs. Hyatt, 7 Bush, 363.)

4. It is not made the duty of the justice to deliver the statement on oath or bond to the sheriff, nor to transmit them to the clerk's office without notification or rule. (Ibid.)

$9. No provision of this chapter shall be construed to

Liability of heirs, change or impair the liability of heirs or devisees for the debts or rents of their ancestor or devisor.

&c., for rents of

ancestor.

§ 10. A distress warrant may issue, although the lease be If lease ended, not ended, but only for rent then due, and not after the lapse of six months from the time it was due.

distress made in six months.

§ 11. A distress warrant or attachment for rent shall bind, Property bound and may be levied upon any personal property of the original tenant found in the county; and upon the personal property of the assignee or under-tenant found on the leased premises.

by distress or attachment.

§ 12. All valid liens upon the personal property of a lessee, Liens, when valid assignee, or under-tenant, created before the property was for one year's carried upon the leased premises, shall prevail against a dis

rent.

tress warrant or attachment for rent. If such lien be created whilst the property is on the leased premises, and on property upon which the landlord hath a superior lien for his rent, then to the extent of one year's rent, whether the same accrued before or after the creation of the lien, a distress or attachment shall have preference, and be first satisfied, provided the same is sued out in ninety days from the time the rent was due.

§ 13. A landlord shall have a superior lien on the produce of the farm or premises rented, on the fixtures, on the house

Acts 1857, 66.

Lien of landlord, hold furniture, and other personal property of the tenant,

to

what

taches.

or under-tenant, owned by him, after possession is taken under the lease; but such lien shall not be for more than one year's rent due or to become due, nor for any rent which has been due for more than one hundred and twenty

Effect of removal days. But if any such property be removed openly from

of property from premises.

the leased premises, and without fraudulent intent, and not returned, the lien of the landlord shall be lost as to it, unless the same be asserted by proper procedure within fifteen days from the day of removal.(a)

(a) A landlord has a superior lien for rent on all the produce of the premises, the fixtures, household furniture, and such other personal property as was acquired before the tenant took possession, subject as to the latter, to any valid lien subsisting at the time it was removed to the leased premises. As to any other property on the premises, he has a superior lien for not more than one year's rent, which has not been due more than four months before suing out the attachment or distress warrant. (Fisher vs. Kollerts, 16 B. M., 408; Williams vs. Wood, 2 Metcalfe, 42.)

2. If property on which the landlord has a lien be levied on under attachment by a creditor of the tenant, the officer levying should pay to the landlord so much rent as is due and in arrear, and is not liable to him for anything more. (Williams vs. Wood, 2 Metcalfe, 42.)

3. In order to render his lien effectual against an attaching creditor of the tenant, the land

erty wrongfully tody, the wrongtreble damages.

doer liable for

14. Any person guilty of a wrongful taking or removing Attached propproperty distrained or attached for rent, from any person taken from cushaving the legal custody of it, shall be liable to the person aggrieved for treble damages, with costs. If the property distrained, after such wrongful taking or removal, come to the possession of the owner by his wrongful procurement, he shall be liable to the person aggrieved in like manner. § 15. If, after the commencement of any tenancy, a lien be created on the property upon the leased premises liable for rent, the party making or acquiring such lien may remove the property from the premises upon the following terms, and not otherwise: that is, by paying to the person entitled to the rent so much as is in arrear, and securing to him so much as is to become due; what is so paid and secured not being more altogether than a year's rent.

§ 16. If the property be taken under execution or attachment, the officer shall, out of the proceeds of the property found on the leased premises, and levied on or taken by him, make payment of the rent payable in money, due and to become due, for the year in which the levy is made, unless a bond of indemnity be executed. But the plaintiff in the execution or attachment may compel a sale of the property under his process, by executing to the officer a bond of indemnity, such as provided for in the Civil Code of Practice, and the remedy provided in it, on a bond of indemnity, shall operate in favor of the person to whom the rent is payable, or other claimant of the property on the bond provided for in this section.

§ 17. When distress shall be made for rent justly due, and any irregular or unlawful act shall be afterwards done by the party distraining, or his agent, the distress itself shall not be deemed unlawful, nor the party making it be deemed therefor a trespasser from the beginning; but the party aggrieved by such irregularity or unlawful act may, by action,

Lienholder may upon what terms.

remove

Rents, when and
Amount of prop-

how to be secured

erty levied on.

Distress for rent lawful by reason

not deemed un

of irregular or unlawful conduct

after levy

lord, if the rent is not due at the time of levying the attachment, should sue out attachment or distress warrant, and have it levied on the attached property on which he has a lien. (Ibid.)

4. A landlord does not waive his exclusive lien for rent by taking personal security. (Smith vs. Wells, 4 Bush, 92.)

5. A surety in a tenant's bond for rent may take up the bond, and have it assigned to him, so as to substitute him to all the rights and liens of the landlord. (Ibid.)

6. The lessees failing to cultivate the leased land, the landlord cultivated a portion thereof. The lessees are entitled to a credit for the pro rata value of that portion cultivated by the landlord. (Ibid.)

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