105 Iowa 116 | Iowa | 1898
II. The first question to- be considered is whether the mortgage terminated the lease, and as to this we inquire for the intention of the parties. Appellant cites cases upon the subject of conversion of mortgaged property by mortgagees, and their liability for the retention and use thereof. This is a question of contract, and not of tort, and the cases cited are not applicable. There is no question but that, under the acceptance of his offer, defendant had a right to possession and use of the piano. Appellant contends that, by the mortgage, he was only given the right to possession, and not the right to use. Therefore the mortgage did not supersede the lease as to the use of the piano and the right of plaintiff to rent therefor. The right to use is not expressed in the lease; yet no one would question the right of the defendant, under it, to use the piano.. The right to use is not expressed in the mortgage, but we think that, viewed in the light of all the facts, the mortgage, taken alone, did confer upon the defendant the right to use the piano so long as it was held under the mortgage. Under provision of the mortgage, the piano was to remain in defendant’s^ possession, in his hotel, during the continuance of the mortgage. Now, surely, it was not contemplated by the plaintiff in making and taking this mortgage that the piano was to so remain as in storage. The place wherein it was to remain indicates very clearly an intention that it was to be used, — an intention that is emphasized