176 Iowa 713 | Iowa | 1916
“A landlord shall have a lien for his rent upon all crops grown upon the leased premises, and upon any other personal property of the tenant which has been used or kept thereon during the term.”
There is nothing in the record to indicate what the old lease was, whether oral or in writing, or for what term it had run at the time this new lease was made, on August 29, 1912 j but it does appear that the old lease did not expire until the 15th day of October, 1912, and it does appear that the property in controversy was on the premises on the 29th day of August, 1912, and continued to be upon the premises until the 12th day of October, 1912. If, upon the making of the new lease on August 29th, to commence on the 15th day of October, 1912, the plaintiff acquired a lien upon the property then on the premises, for the rental to accrue under the new lease, then the taking of this property by the defendant, and the converting of it to his own use, without satisfying the lien, left the defendant liable to plaintiff to the extent of plaintiff’s lien upon the property so converted. But if the plaintiff did not acquire any lien by the making of the contract on the 29th day of August, for rent to accrue under the new lease, until the commencement of the term of the new lease, then the plaintiff had no lien upon the property at the time it was purchased by the defendant, and, having had no
In Taylor v. Terry (Cal.), 11 Pac. 813, quoting from Young v. Dake, 5 N. Y. 463, it is said:
“The time between the making of the lease and its commencement in possession is no part of the term granted by it. The term is that period which is granted for the lessee or tenant to occupy and have possession of the premises. It is the estate or interest which he has in the land itself, by virtue of the lease, from the time it vests in possession.”
We hold, therefore, that the term of the lease, made on August 29, 1912, did not commence until the 15th day of October, 1912; that the property in question was never upon the premises, kept, or used there, during the term of this new lease. It never, therefore, became subject to any lien under this lease. The defendant having no lien upon the property at the time it was sold by Roberts to the defendant, September 20, 1912, there was no conversion of any property on which plaintiff had a lien, at the time the property was removed by defendant, October 12th.
In 1 Taylor on Landlord and Tenant (9th Ed.), page 13, See. 15, we find the following:
‘ ‘ The estate of lessee for years is called a term, terminus, because its duration is limited and determined. It is perfected only by the entry of the lessee; for, before the time fixed for entry, the whole estate remains in the lessor, and the lessee has strictly no estate in the land, but merely a right thereto which is called an inter esse termini.”
In 1 Woods on Landlord and Tenant (2d Ed.), Sec. 60, the author says:
“Every estate which must expire at a fixed period, by whatever words created, is an estate for years; and, therefore, commonly called a term.”
At Section 63, it is said:
“The lease gives no possession; it only gives a right of possession; therefore, until entry is made by the lessee (under*718 the lease), no possession is vested in him by his lease, and, therefore, he cannot bring an action of trespass before entry. A man makes a lease to J. S., to commence at the feast of .St. Michael; lessee may grant, but he cannot have an action of trespass before entry.”
As held in Lee v. Cochran, 47 So. 581 (157 Ala. 311), where a lease provided that it was for a term of five years, 1905 to 1909, inclusive, and gave the lessee an option to purchase at any time during his “term,” by paying $1,280, 'the “term” within which the option could be exercised was the period of five years between 1905 and 1909, inclusive. On this branch of the case, we think the plaintiff must fail.
‘ ‘ Soon after my return from the Springs, I learned from some source that Mr. Canty had bought this stock. I called him to my office, and asked him if it was true he had bought the stock, and he said he had. I said: ‘ I suppose you know I have a landlord’s lien on that stock for the value or amount of my rent for the year, and of course I will hold you as a conversioner of the stock unless my rent is paid according to the lease.’ He replied that he did not apprehend any danger about the rent being paid, that he thought Mr. Roberts would pay the rent, and if he didn’t, he would. I told him I would keep him posted from time to time, • and if Roberts got in arrears on the rent I would let him know. I subsequently conversed with defendant and said: ‘Joe, I have given you notice from time to time, about Roberts being in arrears on the rent. Now the lease is ended and I hold you responsible for my rent, and I will have to sue you for conversion of the stock unless you pay.’ Defendant answered: ‘All right, Mr.*720 Cochran; don’t bring any suit until I find out.’ He told me afterwards that he supposed he would have to let it go ahead, as Mr. Roberts insisted on defending the ease through him; that he would have to have it adjudicated in that way. I then proceeded with the ease. I gave him two or three written notices to the effect that Roberts was not paying the rent, and I would hold him responsible, for converting the goods.”
M. L. Barrett, witness for the plaintiff, testified:
“I heard a conversation between Mr. Roberts and Mr. Cochran in December, 1912, about the rental. Mr. Roberts • told Mr. Cochran he had a tenant who would take the building. Mr. Cochran told him that he would not consent to let him sublet the building, but said, ‘ If you can rent the building to some person for drug store purposes or something that will not conflict with the drug store fixtures,. I will consent that you sublet it, but I will hold you personally for the rent during the term.’ Mr. Cochran told him that he would not release his landlord’s lien, and that he would still hold him (Roberts) responsible on his contract and expect him to pay.”
One Rogers testified:
“Roberts was running the store and was in possession of it September 23, 1912. Mr. Roberts told Mr. Canty before the goods were purchased that he had rented the building for a year. There was some talk between them as to who should pay the rent. Mr. Roberts said that he would take care of that; that Canty was to pay Mr. Roberts, and Mr, Roberts was to turn the rent over to the plaintiff. ’ ’
This is all the testimony offered tending to support this second claim of the plaintiff, and is wholly insufficient for that purpose. The agreement under which plaintiff seeks to hold the defendant cannot be proved in the manner in which it was undertaken to be proved in this ease. It violates Section 4625 of the Code of 1897, which provides:
“Except when otherwise specially provided, no evidence of the following enumerated contracts is competent, unless it*721 be in writing and signed by the party charged or by his authorized agent: . . .
“3. Those wherein one person promises to answer for the debt, default, or miscarriage of another.”
See Frohardt Bros. v. Duff, 156 Iowa 144, which we think is a full answer to the contention of the defendant, under the record here made.
An examination of the proof shows that the allegations of the pleader were not sustained. There is nothing in this record tending to show that the defendant agreed to pay the rent if appellant would not sue or attach. The defendant had a right to sue Roberts, but, under our holding here, had no lien upon the property, and no right to a landlord’s attachment against this property. It is not claimed that the sale to Canty was fraudulent. Further, there is no consideration for any promise made by Canty. Defendant was not liable to the plaintiff for anything at the time these conversations were had; nor was the property in the possession of the defendant subject to any lien of the plaintiff. Plaintiff could not have enforced any lien against the property in the hands of the defendant.
It must be borne in mind that the defendant had purchased, paid for, removed, and had these goods in his possession at the time these conversations were had. In the first conversation recited by the plaintiff, he told the defendant that he had a lien upon these goods for the rent; that he would hold him as conversioner. In this conversation, no mention was made of attachment or suit. The thought of the plaintiff was that he would hold the defendant liable as for conversion. Defendant replied that he did not apprehend any danger about the rent; that he thought Roberts would pay it; that, if he did not, he would; that the defendant received no consideration for this promise, and the plaintiff surrendered no right which he had, in consideration of the promise. In the last conversation, plaintiff re-asserted the
Under the holding in the Duff case, supra, this is insufficient to create a liability on the part of the defendant. Upon this branch of the case, the plaintiff, too, has failed for want. of proof of the allegations upon which he predicates his right to recover.
We think the judgment of the court below was right, and it is — Affirmed.