# Brief for the United States — United States v. Waddill, Holland & Flinn, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386404_0072%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief for the United States - **Published:** January 1, 1945 - **Citation:** 323 U.S. 353 ## Text Rhnw nn nen —~ . ee i . . 4 ; : ; . | ° . / : | : : ; fo “i - . > ; at ZI . . : | ‘ . 3 . ” ; 4 . 2 ‘i | 4 . . 7 . | . 5 ; i . ? » | ’ - KE ] . r . ge ie ad enn 0 ep 5 19 a Drewry v. Baugh ‘and Sons, . 150 Va. 304. Las | Oe er 23 Dudley's Case, Fed. Cas. No. 4114 : matis 11 - Emory v. St. James Distillery, 1438. W. (24) 318, reversed, ” . United States v. Einory, 314 U. 8. 423_-... 22-22 2. -+- 26 Brnst v. Guarantee Millwork, Inc., 200 Wash. 1952. Pacem _ 26 - Ferris v. Chie-Mint Gum, Co., 14 Del. Ch. 262__.-- ae. 27 Field v. United States, 9 Pet. 182- Sipsceat nn © IQAT, 28- 9 Fishburne v. Eugeldove, 91 Va. 548-_ __ - ~~ 20 Geiger’ 8s Adm’r v. Harman's F t-Va130-—— : Soar Gerson v. Shubert Theatre Oey. 7 F. Supp. SO Aa 2 Le ; 15. Grant Co. Vv. Snead, se cctesac 21 Gurfein v. Howell, 142 Vao197___. _- pated a 20 . Hancock vy. Whitehall, Etc. Co., 100 Va. 443... *..---- 18,20 | Hogen v. Callas, 139 Va. 137 -- - - a eins SEN EO Kelly v. Worsham, 160 Ve. 275____- eae 19 - Lillie ‘Laurie, The, 50 Fed. 219... ey wat 12 - Lincoln Chair & Novelty Co., paged of, 274 N. £ 353. oe ee 15, 24 Marshall v. New -York,.254 U.S. 380... ---..-------.---- 14 Michigan v. U nited States, 317 v. Sere 9, 17, 25 . Mosby v. Leeds, 3 Call. 439 (7 Va. 380) _ _- aes 19 Nathan v. Giles, 5 Taunt. 558___- : - gexaak 12 New. Orleans, City of v. es 134 F. (2d) 399» ee : oe ‘New York v. Maelay, 288 U. S. 290. _.. ° 6, he 8, 9, 11, 12, 13, 14, 21, 22, 24, 25 - New York Terminal Co, v: Gaus, 204.N. Y: 512-. ue 14 North River Coal & Wharf Co. y, ‘McWilliams Bros., Inc., 59°. F. (24) 979 (are = “hori Lion alas 14, People of New York vy. U nited States, 106 F.. (2d) 210. 2. - - 15 - Predmont Corp. v. Gaingoville-& ae R. Co., 30 F. (2d) 525 __- ; Shaye Postmaster Ginaial ¥. Robbins, Fed. Cas. No. i314. aes Price v. United States. 269. U.S. 492_- 3 eg 7,8 Prince v. Bartlett, 8 Cranch ws ; — 10 Prudence Corp. v: Geist, 316 U.S. 89_. . 26 _ Reese, Claude D., Ine. v. Unite States, 75 F.(2d) 9... 21 Savings Society v. Multnomah County, 169 U.S. 421__ 10, 11 Sola Electric Co. v. Jefferson Co., 317 U.S. 173_- rot 26 Spokane County v. Unsied States, 279 U.S. 80_- ie | : . 12, i3, 17, 21, 25 Spokane Merchants’ Ass'n v. State, 15 Wash. (2g 186 24, 26 State v. Wynne, 134 Tex. 455. - : 27 Thelusson v. Smith, 2 Wheat. 396. _ - 6, 9, 10,°11, i2 Tropi ical Printing Co. v: Unton Title Guarantee Co., 180 ‘ La. 702_° = : . eae +24 U.S. FP. & G. Cod*. Sweeney, 80 F. 62d) ae oe ee United States v. Canal Bank, Fed. Cas. No. 14715 ; pels ee ee TN ee ER. ° ,. TERT Sg eS NS ares United States v. Teras, 314.U. S 480... - iW BPs : » ; ” 8, 9,10, 11, 12, 13, 15, 18, 20, 21, 22, Vardewater v.- Mills, 19 Hows 82. 17 ux 2 Wate ©. Piseelt, To Va. G76... . 25 = 2 oko sea ee : West Coast Power Co. v. So. Kansas Gas Co. , 20 Del. Ch. 130. West Side Paper Co., In re, 162 Fed. 110 ; Wickham v. Richmond Spike Co., 107 Va. 44, Williamson v. Payie, 103 Va. 551. yee . Statutes: : oe Act of 1748, c. 15, sees. 5, 6 (Va. Laws 1752) _. ‘i _ Act ‘of March 3, 1797, sec. 5 (1 Stat. 515)_.- Act of March 2, 1799, see. 65 (1 Stat. 676) __ i Act of 8 Anne, ce. 14; see. 1 > ae : Revised Statutes, sec. 3466 (31 U.S. C. see. 191)____. 1 Virginia Revised Code (1819) p. 448__- Virginia Code (1887), see. 2792_ __ - : oo Code (1919), see. 5524- _ _ - J Virginja Code of 1936: ; ; - Sec. 5519-7 e ' See. 5519-5523 =e Sec. 5522 Sec. 5523 , 16 See. 5524- a _ 16, » See, $697. ...-..: ; Nee. 5528 : See. 5783 : See. 651%. Sec. 6519_ 4 ee . Virgimia Code (1942) see, 5524_- as ea | Miscellaneous: - Wi Jones, Liens, sees. 1676 et seq..--.. rahe Cae tete we : Rot hee PD ” Cases—continued. . United States ¥, Dunean, Fed. oy No. = United| States v. Emory, 314 U.S. 423. / United \States v. Hooe, 3-C ranch ye Mae v nited \States v. Knott, 298 U. S. 544__ United States v.-Oklahoma, 26 U. 8. 253 =: . - STATEMENT Mrs. Ocland Roman’ was doing business under the trade name of Roman's Restaurant. Danville, Virginia, on premises leased from: respondent’ Wadadill, Holland & Flinn, Ine. (R215). On June 19, dl, Mrs. ‘Roman executed a géneral deed of assignment te a trustee for the benefit ef cred- itors (R. 15-17), specitieally ‘conveying all per- sonal property, fixtures, and equipment. used byed . the assignor in the conduet of the restaurant and located on its premises (R. 15, 26-27). ‘The prop- erty assigned was duly sold by the trustee, and after the deduction of appropriate administrative s . Belt) £93 a4 . - o 17 - ee 1 ‘The Saprenie” Comrt—atAppeats—ot} ee held that Section 5524 creates a hen, Htfective “ws wit the date the Tenancy cectiine need, Without tlie “HeCESSITY, for any further proceeding | by distress, attachment, or otherwise, That. holding’ om a “proposition wf state Taw is, of ectrsé., controlling . here, But the question Whether the lien is suf ficiently: * speenic and perfected” to override the statutory prints of the United, States is a ques thom of Tederal law as to which the characteriza Slow given by the state court eaniiot control. The states may net establish aspriority in conflict. with that.. Jpreserit bed by Seetion 4b, Kicld yt nited States, 9 Pet. 182, 201 Uudted State SV, Oklahoma, “961. UL. 8. 253, ZOU; “Spokane ho ounty v, United States; 279 U.S. 80, 90; United States v, Emory, 314 U.S. $930 425-427 - éf, Michigan v United — Shates, si ie Oat ~. ON. BAO: ANcomrdinigt iV, we? look not te the characterization eiven the dien by the Virginia court in the present ease, but to the actual rights and powers conferred by the lien / upon — as déclared: by the state courts. applied only whie it oly prcinn | Were taken oni “execution o> any prete beecet whiatsoeyet (+! it word “or” Whic i; «aloes hot. appear in the Enwlish statute. has Peel suid to be a type , graphical error, American Fa se Bank vo Goodlee R. Corp. super 244). Die Code ¢ 4 ISS7 extends dhe landlord ie right to cases where a lien is asserted ona tenant ‘Ss Property . and in the revision of 119 a prohibition against removal off — goods by “purchasers” awwas expressly incluileds the re} lasers’ note stating that this Wa thought ie re ‘ly. ta e 5 sic “fh , ee arly the effect of the Section as it stood, : we. pe 2 When so measured, the lien lac ks specific ity in se ae respec ts: SE The le hi secured. ‘s not “specific—The lien se ae hot for the rent dine during a particular SIX nidnths’ 5 period,. but) for rent) which -may happen to be due at or after the time when the lien is asserted (see W ades \, Figgatt, 7 (9 Va. 575, 582 (1S81)). and where the disse tion of the lien ist hot based i pon the Je ‘vy Zoe il distress, that time is selected. by someone. other than the “landlord. The amount of the debte secured is not specific either; there may be dispute as to the rate of rental prescribed (co. 4, Hayan v. Callas, 139 Va. 137 (19249), and in-any event the amount secured will depend upon whether at the time the lien is " usse rted the tenane vy has terminated or will termi- cain Within six menths of the date to. which the rent has been fully paid. Moreover, the amount of . the debt see ure “d by the hes oF for whie h distraint may be ‘made mia be subject, prior to distraint, to. the right of ‘the tenant toa se t-off., Ch Hancock vy. Whitehall, Kk fe, Lo. hoo Va. 443, 447 (1902), “Thus, ; as | in U7 Ce States vo Te ras, o14 U.S. 480, 487, 488, the wnount of the de! at for which the lien is a security “is: left: te “determination by the courts 7; theslien ‘could not become specific until * thes exact amount . of the. [4 lebt; due had bee ‘nh determined.’ : 2.° Fhe yoods stibject to the lien are not Spe- cifte.—The len extends to the tenait'’s mterest in “whiatever goods he may bring onto the pretfises, in- *cludfag goods brought there after the beginning of i. ¢ pas a > EE Le ne ee ee ee a oti RMN Ta eRe y's as Ray peel « = 19 the tenancy (cf. Dinge ss-Rnm Coal Co. NV. Draper Eagle Coal Co., 108 W. Va. 37 (1929) )—a matter — distrain within 30 days asf th es yo bist 275 (1933). as to which the landlord usually has neither knowl- edge nor control. it does net prevail over a pur- _¢hasé-money mortgage or any other hen which attached before the goods were brought on the” premises. Va. Code, Sees, 5923-9924, - Appendix, i ‘ds ‘mfra, pp: 380-32. ‘The Vi inguin isfatute prohibits re-' moval only by a iener or purchaser; nothing in it would appear to prevent the tenant, or any other person, from removing whatever goods he’ may choose. When goods gre removed from the prenises, whether i in violation of the. statute or hot, It dees not appear that the landiord ean fol- “low the goods.» In any event, the landlord can neither seize nor sell the tenant's voorls save by the process of distrauit provided by the statutes 10 TE Mas been indic ated th: at property sod hy a merchant, . in the ardjnary course of busine sStis not subject to this pro’ vision. American. Evchang: Bank v. Qoedlee Ro Corp. V8 Va. 204, 292. (19233. ° R 2 " The landlord may. under ee provisions of the statute, woods had not been removed (Va. Code, See. 3523)—a right which: exists regardless of whether the removal of the-geods was in v iolation of See tien 5524. But onee the goods have been removed from the premises, whether or not tlie right of cfistraint remains: the. landlord cannot prevail over an attaching creditor. Gear r's Admer v. Harman's Farr, 44 Va. 130 1846); Moshy v. Leeds, 3’Call. 439 (7 Vu. 380) (1803) :. Dime, De posit Bank “y. Wescott, 113 Va. 567 (1912). Aside from the sight of distraint, his only remedy would appear to he a personal % action for damages ayainst a purchaser or henor who removed - > goods in violation of Sec, 5524 American Erchanae: Bank ~. Goodler, Ry Corp., WB5 Va, 204 (1923): Ay Ny x. Worsham, - _ ing 20 e (Va. ( ‘ode. Sees. AI9-5523- witch: isa “proceed- # > judicial in * \* * Character.’ Wickham vy. Richmond Spike Co., 107 Va. 44, 49° a > (1907). gies distress warrant is returnable in court (Va. Code, See, DAS), and the tenant has the opportunity to make any defe ‘nse to the dis- -/ tramt (See, 6519). and thus to secure = il trial of the amount of rental due (Mogan vo Callas, . 139 Val 137 (1924) ; of. Curt. inv, te pha Va. "197, 201 (1925)) and to elaim ‘ny right of set-off — 4 Hancock vo W hitehall, Ete. Co., 100 Va. 443, 447 i, W902) ). Only suffies went goods Inay be distrained. to satisfy. the re nt justly believed due. and the ten- "apt has an action for damages, comparable to an action te W trespass, for EXCESSIVE distraint® (Va. Code, See.5783 ; Mishbirne vy. Bn ldove, OL Va.-: M48 (1895); ef. Va. Code, See. 5527), this indicat. ing that: the Hien’is inchoate ‘and net speemic. and perfeetedh ; ‘ It is apparent that the property subject to the = leon here tnyelved is tio mere specific and con- stant ¢ that Was the state lien one the “property devoted to or tised in ithe debtor's | business asa. distributor” whie - Was Involved.in United States Teas, 314 U.S. 480, 487. The. amount of the debt secured is net fixed. “And not until distraint by “the a “does the lien. aitach to Specified goods Ma -specific amount so as to enable ‘the ess to satisfy his claim out,of them. “Prior to distraint, the * ‘lien’ is merely a right to pre-- 4 21 vent removal of the goods from the premises by certain classes of persons, and a right under state —— law to priority in distribution so long as the goods. remain‘on the premises. In short, as'in United States v. Texas, 314 U. S. 480, 488, the lien in question ‘“‘did pot of its own force divest the [debtor ] of either title or possession * * * and it could not be enforced without the assist- ance of the courts.” Until such enforcement, it amounts to no more than a state statutory declara- tion “as. to the order of payment of creditors, which cannot override the inconsistent declara- tion of R. S. 3466.” Thus, the landlord’s lien conferred by Vinsinin law does not appear to differ essentially from the” » The fact that a landlord’s lien, where created by state law, i is considered, to come within section “67f. of the Bank- ruptey Act, thereby taking ahead of any of the priorities given by section 64a thereof (e. g., Jn re Brannon, 62 F. (2d) 959 ' (C.C. A. 5) ; Bradford v. Graham, 287 Fed. 686 (C.C. A. 4); Grant Co. v. Snead, 37 F. (2d) 705 (C. C. A. 4)), has no sig- ~ nificance in a proceeding under R. S. 3466. Under the bank- ruptcy statute, the claims of the United States for taxes and . other debts are, subordinate under section 67f of thit statute to those of the states or individuals secured by general liens. U.S. Fo & G. Co.v. Sweeney, 80 0 F. (2d) 235 (C. (. A. 8); Claude D. Reese, Ine,x, United States, 7 5 F. (2d) 9(CICLA 5) ; cf. City of New, Orleans v. Harrell, 184 F. (2d) 399, 402 (C. C. A. 5). General liens, of course, are subordinate to _ the priority of the United States under R. S. 3466. Spokane “Caunty v. United States, 279 U.S. 80; New York v. Maf§ay, — 288 U.S. 290; United St v. Texas, 314 U.S. 480; Umtid States v. ya 131 F. (2d) 466, 4693-470 (C. C. A. 7). The “twa Acts are not in pari materia. United States v. Emory, . 3d Ss S. 423, 498-4 Te) statutory’ lien for ‘corporation pate taxes con-. sidered by this Court in New York v. Maclay, 288 . U.'S. 290, -or from the lien for gasoline taxes involved in U nited States v. Texas, 314 U.S. 480. In both those cases, the state taxes,-as a matter of state law, were paramount and superior to. all other lieris, including the lien created by pre-. existing mortgages. They failed i in the contest of priority with the United States because, as was - pointed out in the latter case, they did not of their ‘own force divest the t taxpayer of either title or — possession, or because they were not so “ specific and pe rfected” against an identifiable chattel as in éffect to divest the property from the debtor’s estate. We believe: that similar considerations here obtain to subordinate the Virginia statutory | lien. - ene eka eee! ° | | THE LIEN OF THE CITY OF DANVILLE FOR TAXES IS NOT ENTITLED, TO PRIORITY AS AGAINST THE 58 es OF THE UNITED STATES ‘ = ‘The Corporation Court of the City of Danville “held-that the taxes due the City of Danville wer a specific lien on the furniture and equipment . superior to ‘the claim of the United States (R.- (33434). The Supreme Court of Virginia did not ‘ decide whether this tax hen was as sufficiently ‘‘syie- -cifie and perfected’ to override the claini of the United States, since it found that ‘the landlord’s S claim would exhaist the availabie fund (R. 43). o 9. ~~ long as they-remained on the prentises .. eines 23 If, as we contend, this ruling: as to, the bindlond* Ss. priority was error, the relative priorities of the United States and the city become pertinent. In awarding priority to the city, the Corpora- tion Court apparently recognized that the munici- pal tax confers alien ona specific chattel, capable of following it wherever 1t may be,.only if specifi- ‘ally assessed on that chattel (Drewry v.. Baugh and Sons, 150: Va. 394, 401 (1928) ; Chambers vy. Higgins, 169 Va. 345, 351-352 (1937) ), and that | otherwise the right. of the tax collector is mere ly a right to distrain.” But-it does not appear that each item of furniture was ‘assessed’ separately, The holding of. the Corporation Court was, : by - ‘analogy to the requirement of description in a. chattel mortgage (see Ww liamson Vv. Payne, 103 Va. 591 (1905) ), that assessment of the furni- ture cand equipment as a unit’ was sufficient. to. establish a specific lien upon them as a unit ‘‘so ” * = ‘Had they been divided and removed therefrom tio doubt ° different results would’ have’ followed”? ; Pee : | ’ This right is made superior ob a mortgage lien by Sec- tion }S1 of the Va. Tax Code, but is inferior to the hen-of an - execution.. Drewry v. Baugh and Sons, 150 Va. 394. (1928). It may be noted that both the landlord and the city thought that judicial .proceedings were necessary to make their liens specific: and perfected. Both distrained or attached (see Statement, supra, p. 4). Indeed, the landlord claimed pri- ority solely because of the levy of the attachment and dis stress warrant (R. 22): . 24 We submit that such ‘a lien, accompanied by - neither title nor possession, which attaches to the I—+ & furniture and equipment only for so long as it remains om the premises as a unit, is not, as a matter of federal law, s ciently’ specific and per- fected to defeat the priotity of the United States. The lien for the city’s taxes appears to be simi- lar m veneral character to the lien for state taxes He consider red in New York v. Maclay, 288 U. S. 290, (1934). - ? A and ‘United States v. Texas, 314.U. 8. 480, which were held to be subordinate to the Federal Gov- ernment’s claim (see pp. 13, 14, 15-16, 18, 20-22, supra).* Ill - RECOGNIZING LIENS OF THE CHARACTER INVOLVED/IN THE INSTANT ‘CASE AS SUPERIOR TO THE PRIORITY _CONFERRED ON PHE UNITED STATES BY BR. 8. 3466 . WOULD. ‘IMPROPERLY PERMIT STATES TO SUBSTITUTE “THEIR OWN PRIORITY SCHEME FOR THAT DIREC PED “RY GONGRESS _-As this Court reaffirmed in United States v. Emory, 314 U.S. 423, 426, the purpose of Section 3466 is ‘to secure,adequate public revenues to sus- ™ State courts have recognized that state statutory liens for taxes, when unaccompanied by a. change of title or Bape ‘sion, must yield to the priority established by R. S. 3466. West Coast Power Co. v.. So. Kansas Gas C 0., 20 at Ch. , 130, 131 (1934); Matter of: Lineoln Chair & Vove Ity, Cé., - 974. N. Y. 353 (1937) ; Decker v. Decker Building Material Co., 118 N. J. Eq. 177, 179 (1935) ; Spokane Merchants’ Ass'n v. State, 15 Wash. (2d) 186, 188-189 (1942) ; ef. 7° ropical P rint- ing Co, v, Union-Lithe’ Guaranfec Co., 180 La. 702, 730-732 ee tain the publie burden’? (United States v. State ~~ Bank of North Carolina, 6 Pet. 29, 35), and it is | "> to be construed liberally i in order to effectuate that purpose (Bramwell ¥. U. S. Fidelity & Guaranty Co., 2609 U.S. 483, 487 ). This Court likewise has repeatedly stated that ‘states are without power to_ establish a priority in conflict with that prescribed by Section 3466 (Field v. United States, 9 Pet. 182, 201; United States v. Oklahoma, 261 U. S. 253,.260; Spokane County v. United States, 279 U. S..80, 90; ef. Michigan v. United States, 317 - U.S. 338, 340). The dee ‘ision below, we submit, by substituting the state order-of priority of pay- ‘ment for that éstablished by R. 8S. 3466, reaéhes a result at Variance with the imperative language ~ of that Section and the controlling, deci ‘isions of | this Court. oe It is, of course, clear that should-a state statu- tory lien, unaceompanied by either title or pos- “session, be held superior to'a claim of the United | States, it would be possible for a-state, by the simple expedient of characterizing certain classes of claims ag liens, to substitute its own conception _ of priority: in cases of insolvency for that of Con- , gress, ‘Attempts of states to. procure prior :pay- 9? ment of “their taxes, in this manner have been ' rejected’ by this’ ‘Court in the Spokane County, - Maclay, and Tezas cases. (See also fi. 14, supra; p. 24.) The results in those cases accord vith the repeated statements of this Court that the ° benefits of a federal statute may. not. be evaded or _ denied by state statutes or common-law rules. E. 4., ‘Sola Electric Co. v. Jeffe rson Co., 317 U. S, 173, | 176; Prudence Corp. v. Geist, 316 U. S. 89, 95. plt is only when. the debtor bee -omes: insolvent’ that a statutory lien assumes stature. The lienee then .becomes entitled to priority in payment out of the assets charged with the lien. Piedmont Corp. V. Gainesville & NW. R. Co., 30 F. (2d) 929, 9380 (N. D. Ga.). A state statute providing © for priority of payme nt te certain classes of debts acqomplishes the same ultimate result as a statu- tory tien Not gtate | laws grating. priority in payment must yield te the. priority conferred by R. S,. 3466. We submit that a state cannot achieve the same result by indirection. Whether it uses the terminology of lien, or that of prior- ity in distribution, a state cannot by mere statu- tory declaration override the command of R. S. 3466 as to the priority of the. United States dver other creditors.’ This sslceinhe apples to the landlord's ‘lien here in question. In those states whieh follow the common-law rule, no len. arises wutil dis- | ar ttn * Thus, the atte mipts of states to prefer wage clainis ‘by a statutory de« ‘laration of priority (Emory v VSS. Sames Dis tiller, WBS. W. (20) S18 (Mo. Ct. of Apps. T840). reversed, Unite States v, Bmory, Se, S. 425) or by statutory lien (Erasf vv. GQuarantes Millivork. dnc 2) Wash. 195 (1939), overruled sud xen? io, “Spokane Merchants Ass'n y. Ny ate, 15 Wash. (2) 186) (142), were alike unsuccessful in view of | + & S"3H “ ee oO °7 traint, acigntiog of course effects a change | in pos- session.’ ‘In other: states, by statutory tpse dizit, ite beialieks has a paramount lien by reason’ of - the relationship of landlord and tenant alone. oWe d6 not. perceive that -a ‘state statute which merely provides that such a lien shall be para- mount to all.other vlaims (with the, usual exe ep- tion of state and municipal tax liens) changes the /- inherent nature of the claim or raises its ch: arac- 2) ter to that of ; L specific and- perfected he 1, eH- titled to prevail over the priority of the: United States.” Moreover, it may frequently result, as in the instant case, in enabling. state or municipal taxes otherwise uncollectible, owing to -the imsol- vent: condition of the debtor and the priority | pie accorded by R. S.°3466, to be paid in- full. ie siete Vv. Chie- Mint Gum Co., 14 Del. Ch. (1924 State v. WwW YRne, 134 Tex. 455, 471 Gag). ‘enn we maintain that -the state statu--~ tory liens here in question, Which are not specific, and de hot divest the debtor of either ‘tithe or. posses sion, are incapable of de ‘Teating the priority “of the U nited States under R.. S. 3466, no matter haw suc +h lie ‘us may be char acte rized as a matter of state “Taw. - As the court halow remarked (R. 40); “At Common biw . the landlord had no lien upon any property of his tenant .as security for rent prior to. the levy of a dist ras - Warrant. / 31 Am. Jur.. ‘Landlord and Tenant. See. abd a $61, and | . authorities there igre Cf. In re Ww ext Sidi Pooper Co... / (162 Fed. 110 (C.C. A bat eee | CONCLUSION : —For-the ages saa “it-is respectfully EE mitted that the decision below should ‘be reversed. . | and the case remanded. with direction that the debt due: the | United States be the first paid. ; - CHARL ES: Fany, : Solicitor Gonz ral. + Secrcn ie Sura, | Assistant Attorney General. . D. L. Kreraer, - ‘siased Assistant tor the Attorney General. 4 PauL A. SWEENEY, fe / WALTER J. Cumminas, Jr.,. | ce ; Si Attorneys. _ SEPTEMBER 1944. Seb ee tee, APPENDIX ra ‘— United States (31 U:,S. ©. 191) provides: Whenever -any person: indebted to the United States is insolvent, or. whenever ‘ the estate of any deceased debtor, in. the hands of the executors or administrators, is insufficient to pay all the debts due from the deceased, the debts due to the United States shall be first satisfied; and the pri- ority hereby established shal! extend as well cieut property to pay all his debts, makes a voluntary assignment thereof, or in which the estate and effects of an abscond- ing, concealed, ‘or absent debtor are. at- tached by. precess of law, as ‘to cases in Which an act of bankruptcy is committed. "The Virginia Code of 1936 provides: . § 5519. REMEDY FOR RENT AND FOR USE AND OCCUPATION.—Rent of every kind maybe recovered by distress or action. A land- ‘the agreement is not by deed) a reasonable satisfaction for the use and occupation of lands; on the trial of which action, if any arol demise, or any agreement (not’ being = deed) whereon a cértain rent was. re- - tiff shall .not therefor. be non-suited, but amount of his debt or damages. In any f (29) . Section "3466 of ‘the. Revised Statutes of the | to cases in which a debtor, not having suffi- lord may also, by action, recover (where served, shall appear in evidence, the plain-. ‘may use the, same.as evidence of the - qa action for rent, or for ‘such use and occu- pation, interest shall be allowed as on other contracts. (Code 1887, § 2787.) « * * * * ’ § 5922. WHEN AND BY ‘WHOM DISTRESS ~MApE.—Rent may be distrained for within five years from the time it) becomes due, and not afterwards, whether the lease he ended or not. Lhe distress shall be made. -by-a constable, xheriff. or sergeant of the county or city wherein the premises vield- Ing the rent; or some Sart thereof, may’ be, er the -g6ods liable to distress may ‘be. Found, umder warrant) from a justice, founded upon an affidavit of the ‘person claiming the. rent; or his agent. that the amount of money or other thing to be dis-. -tramed: for (ta he. specified in the: affi- dayit}, as he verily believes, is justly due to the claimant for rent reserved upon _contraet from the person of whom. it is _ claimed, (Code 1887... § 2790; 1902-34, p. 664.) —. 3 ae 4 | 859237 ON WHAT Goon LEVIED—The (distress may be levied on any goods of the bessee, or his assignee, or undertenant: found on the premises, or which may have | been removed . therefrom Het more than thirty days. A ‘levy within such thirty days shall have like effect as if. the goods levied on, had net boon removed from the - leased premises. If -the goods of such — lessee, assignee, or underfenant, . when carried on the premises, are subject to a> lien, which is valid agaist This creditors, his interest only in’ such: geods Shall be liable te such distress.” If any lien he created thereon while they are upou the leased — premises, cor within thiriy days thereafter, they shall be liable to. distress, *. e ae _ but for not more than six months’ rent if the | “premises are if a city er town, or in any subdivision of suburban and other lands - divided inte building lots for residential purposes, or of premises anywhere’ used. for residential’ purposes, and not for farm-— , ing, or agriculture, and for not more than twelve months’ rent if the lands or prem- Ises are used for farming or agriculture _ Whether it) shall have acerued before or after the creation -of the lien. -No other goods shall be liahJe ‘to distress than such ' as are declared to be so liable in this see- tion, nor shall the goods of the undertenant he liable to als greater amount) tham sueh undertenant owed the tenant at: rhe time the distress was‘ lévied. * (Code 1887, 8 2791; 1922, 1) SB: 1932, p. 696.) of ; 85524. WHEN Goops’ NOT TO BE REMOVED Pe dainiyenso5 4 PAYING SIX MONTHS’. RENTS LiRN FOR TANES, TEVIES, AND MILITIA FINES NOT arrrerep.—Tf, after the conusencement ‘of any tenancy, a lien be obtained or created by deed of, trust, mortgage, or otherwise, upon the interest or projerty in goods on premises: leased or rented, of any -person liable for the ae, or the said goods be scdd, the party. having such tien, or the prirchaser of such goods, may repove them . from the premises on the following terms, and not otherwise, that is. te sav: On the terms of paving to the person entitled to. the renf so muchas ts in arrear, and: secur- ing to him-so much as ‘is to become due, What is so paid or secured. not being more aitiaiethor than-six months’. rent if) the premises ave in a eity or-toWn, or in any subdivision of -suburban and’ other lands ‘divided. inte building lots for residential» purposes, , or a pier anywhere used . / ! 7 . / . - | / . . . for residential purposes, and not for farm- ing or agriculture, and not being more alto gether than twelve months’ rent, if the lands or. premises are used for.farming or agriculture. If the goods be taken under legal process, the officer executing it shall, out of the proceeds of the goods, make such payment of what-is‘in arrear; and as to what is to beeome due, he shi if sell a sufficient portion of the goods on a credit till then, taking from. the purchasers bonds, -with good security, payable to the ‘person sp entitled, and delivering ‘such bonds to . him. If the goods be not taken under legal process, such payment and security shall ‘be made and given before their removal. Neither this nor the preceding section shall affect any lien for taxes, levies, or militia fines. SHON ie Ate tan, Ree ) For the purpose of this act a monthly or weekly tenancy shall not be construed as -a new lease for every month or week of occupation of the premises by the tenant, but his tenaney shall be considered as a .continuance of his original lease so long as he shall continue .to oceupy the property without making any new written. lease: (Code 1887, § 2792; 1922, p. 863; 1932, bp. G36.) ~~ FUN ay ~ $5927, WHEN DISTRESS NOT UNLAWFUL BECAUSE OF IRREGULARITY, ETC.—Where dis- tress shall be made for rent justly due, and: any irregularity or unlawful ‘act shall be ‘afterwards done by the party. distraining, or his agent, the distress itself shall not be deemed to be unlawful,arr the party mak- ing it be therefore deemed a trespasser ab initio; but the party aggrieved by such ir- ¥eularity or unlawful act may, by action; recover full satisfaction’ for the speeial . - se 33 ; e . * , Z 3 damage he shall have sistained thereby. om (Code 1887, °§ 2794.) _ ? © § 5528. RETURN OF DISTRESS WARRANTS; PROCESS OF SALE THEREUNDER.—It shall be the duty of each officer who, under the present law may execute warrants of dis- tress, éxcept where it is otherwise provided by law, to make return of his~action. and proceedings upon such warrants as maybe placed in his hands for.collection, and file the same with the clerk of the circuit or corporation court of his. county or city, a: a] the case may be, except in the city of Rich- mond the same shall be filed with the clerk of the circuit court, or the ‘clerk of the law _ and equity court, or the elerk of the’ law . and equity court, part two, within, sixty days after the same may. have come to - his hands, upon the return of such warrant it shall be the duty of such clerk to enter the same upon the execution’ book ‘of his office after the manner as now provided by law as to executions issued by justices and returned unsatisfied, and the said clerk shall - preserve such warrant in his office as is now provided as. to such unsatis.ied 2 teys has If suck return shall show that a leyy has.’ | been made and that. property levied on remains ‘unsold, it shall be lawful for the - . said clerk of the court in whose office such return js filed to. issue a/writ of venditioni exponas thereon just as if the said return were upon a writ of fieri facias. (1897-8, p..755; 1930, p. 456). ” ee * * : * + par ‘§ 5783. FoR WRONGFUL DISTRESS, ETC.—If property be distrained for any rent not. due, or attached for any rent not accruing, or taken under any attachment sued out without good cause, the owner of such * { property May, in an-action against the party suing out the warrant of.distress or attachment, recover damages for the wrong-— ful seizure,sand also, if the property be ’ ( : D sold, for the sale thereof: (Code 1887, . * GOO es ae pease a * Baw, ae : 4 * > § 6518. WHEN AND. HOW FORTHCOMING BOND MAY BE TAKEN; PROPERTY THEN RE- MAINS IN .PEBTOR’S POSSESSION.—-The sheriff or other officer levying-a writ of fieri facias, or distress ‘warrant, may take from the — 4 . debtor a bond, with sufficient: surety, pay- able to the creditor, reciting the service of such writ or warrant, and the amount due thereon (including his fee for taking the bond, commissions,” and ‘other lawful charges, if any), Wtth condition that the property. shall be forthcoming atcthe day and place of sale; whereupon, such prop- erty may bé permitted to remain in the possession and at the risk of the debtor. (Code 1887, § 3617.) i ane § 6519. How TENANT JDNABLE 10. GIVE FORTHCOMING BOND MAY HAVE DISTRESS WAR- RANT. RETURNED TO COURT AND MAKE: De- FENSE THERETO; WHEN OFFICER, IN* SUCH _ CASE, TO TAKE POSSESSION OF PROPERTY LEVIED ON ; ITS SALE, WHEN PERISHABLE OR EXPENSIVE TO KEEP.—On affidavit by a ténatyt, whose property has been levied on/ ynider a war- /—~vant of distress, that he-is-unable to give the bond required in the precedii seetion, and thatdievhas a valid defense under see- tion sixty-five hundred and twenty-two, the’ officer levying the Warrant shall permit the property to remain in the possession and at the risk of the tenant, and glial return the warrant, together with’ the affidavit, ‘to. Vand ype eee oat aaa : z / ” =) | ae . +. we ‘the first day of the next term of the circuit . courto€ his county or corporation court of - * his-¢orporation, and thereupon the land- lord after ten days”. notice in writing: to the tenant, may make a motion before such court for a judgmené for the amount of the rent and for a sale of the property levied on, as afoxesaid, to which motion the ‘ten- ant may make such defense.as he is au- |” thorized to make, under -section, sixty-five hundred. and twenty-two, to ‘an’ action of motion on the bond where one js given. Sie the claimant of the rent, or some one fer: _ him, shall. give bond with sufficient surety, ‘in a penalty double the value of the proy- erty levied’ on, with condition to pay all”. - _costs and damages whi¢gh may accrue to any. one by reason Of his suing: out said warrant, the officer shall take possession . of the property and hold thé same subject to the order of the court. If the property. be perishable, or expensive to Keep, the court, or the judge therepf in vacation, may “order it to be sold, and on the final trial of the cause, the-court shall dispose of the property, or proceeds of sale, according to the rights of the parties.” (Code 1887, § 3618; 1902-34, p. 839.) saz ih : U S GOVERNMENT PRINTING OFFice j94a6 £e --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386404_0072%3A3. Public record. Not legal advice.