32 Iowa 547 | Iowa | 1871
Lead Opinion
I.. The first question which we notice is, whether the statute gives to the landlord a lien on the personal property used on the demised premises for rent to become due.
The section of the statute applicable to this question is 2302 of the Revision of 1860, and was section 1270 of the Code of 1851, and reads as follows:
“A landlord shall have a lien for his rent upon all crops grown upon the demised premises, and upon any other personal property of the tenant which has been used on the premises during the term, and not exempt from execution, for the period of one year aft,er a year’s rent, or the rent of a shorter period claimed, falls due; but such lien shall not, in any case, continue more than six months after the expiration of the term.”
The language of this section does not specifically point out the time when the lien attaches. It does specify how long after the rent falls due it shall continue. The first case involving this question is Grant v. Whitwell, Marsh & Talbott, 9 Iowa, 152, in which Mr. Justice Woodward states the leading question in the ease to be, “ when does the lien attach, whether at the commencement of the'
“ Then to say that the lien holds only from the levying of the attachment is to destroy its very essence. It then amounts to an attachment only. And if it holds only from the time the rent becomes due, the promised aid is delusive; it is but security for a debt past due; and if it is payable at the end of a year, or of six months only, the property may be taken by another the week after one of these pay days, and the lessor has nothing for the remainder of his term. It seems to us that the very essence of this provision of the law is to give the landlord a security for his rent as such and beforehand / his rentage as it may fall due, and not merely for a debt now due.”' This construction of the statute was affirmed in Carpenter v. Gillespie, 10 Iowa, 592.
In Doane & Co. v. Garretson, 24 Iowa, 351, it was said in the opinion that the lien of the landlord attaches upon goods Tceptfor sale upon the premises as the rent accrues, and not from the commencement of proceedings to enforce it, and the previous cases are cited in support of this enunciation of the law. It was only necessary in that case to hold that rents which had accrued and were due were a lien on the property upon the demised premises without the commencement of an action to enforce the lien, and that therefore a mortgagee of personal property, of which he had taken possession, was protected in the payment of rent due when he took possession, against a creditor who had attached the mortgagee as a garnishee for the surplus remaining after the payment of the mortgage. The expression of the law, as used by the learned judge, was sufficient in that case, and was probably taken from the reporter’s head
Tbe doctrine of Grant v. Whitwell, Marsh & Talbott has been approved and affirmed in Carpenter v. Gillespie, 10 Iowa, 592, Doane & Co. v. Garretson, supra, and remains still as the doctrine of this court. We are satisfied, moreover, tbat tbe true and just construction of tbe statute isas announced in Grant v. Whitwell et al., supra, and tbat there is, therefore, no good reason for disturbing tbe decision in that case.
Appellee’s counsel insist tbat tbe property used on tbe demised premises is only liable as tbe rent accrues. Tbat it is only subject to be attached and made liable to tbe payment of tbe rent as it falls due, is certainly correct; but if tbe rent is a lien on tbe property before tbe same falls due, tbe property is secu/rity for tbe payment of tbe rent prior to maturity, and becomes liable for tbe payment as it falls due. Hence arises tbe question of tbe landlord’s remedy in
II. Have the plaintiffs a complete and adequate remedy at law ?
The law affords a remedy only for the enforcement of the lien against property for rent ckie. While the landlord has a lien for his rent on the personal property of the tenant used on the premises and not exempt from execution, he cannot enforce that lien at law until the rent falls due. He can only enforce it against the property to which the lien attaches and which remains on the demised premises, or can be found and is capable of identification. For the threatened injuries to their security complained of in plaintiff’s petition, there is no remedy at law.
It is well settled that a mortgagee may have an injunction to prevent any commission of waste to the mortgaged premises which may impair the mortgage security. Brady v. Waldron, 2 Johns. Ch. 148; Robinson v. Preswich, 3 Edw. 246; Salmon v. Clagett, 3 Bland. 121, 180.
So, also, after land of an insolvent debtor has been attached for a debt in a suit at law, an injunction has been granted by a court of chancery to restrain the debtor from committing waste. Camp v. Bates, 11 Conn. 51; and it has been held, that after a sale on execution, during the time allowed by statute for redemption, an injunction will be allowed at the suit of the purchaser to restrain the defendant from committing waste. Boyd v. Hoyt, 5 Paige, 65; Bank of Utica v. Mersereau, 7 id. 517.
A threat to commit waste is sufficient ground for an injunction though no waste has actually been committed. Soudon v. Warfield, 5 J. J. Marsh. 196; Duvall v. Waters, 1 Bland. 569.
Upon the same principle that a court of equity will interfere by injunction to prevent the commission of waste by a mortgagor, at the suit of a mortgagee, it would seem
Had the lessees in this case made and delivered to the plaintiffs a chattel mortgage upon the personal property in the hotel to secure the payment of the rent as it should fall due, there could remain no doubt of the existence of plaintiffs’ Men prior to the rent falling due, nor would there be any doubt of plaintiffs’ right to an injunction to prevent the property from being carried out of the State. Holding in accord with the rule in Grant v. Whitwell, Marsh & Talbott, supra, that the lien for rent attaches at the commencement of the lease, or when the property is brought upon the demised premises, it seems clear that the landlord is, under the statute, placed in substantially the same position as to his equitable rights and remedies, as if he held a mortgage on the property to secure the payment of the rent as it became due. The equitable right of each to the aid of a court of chancery to prevent the fraudulent removal of the property, on which rests the lien, out of the State or beyond the reach of the creditor is the same. The same principle upon which relief is afforded to one is equally applicable to the other.
It is true that the landlord’s remedy, for the collection of his rent and the enforcement of his lien, is statutory and must be pursued when the object is to enforce the lien and collect the rent due. Rev. of 1860, § 2303; Merrit v. Fisher, 19 Iowa, 354. But, as held in the case cited, this statutory remedy is given for no other purpose than the recovery of rent due. Now the remedy sought, in the case before us, is relief against the alleged frauds of defendants whereby plaintiffs’ security for a debt not then due was about to be injured or destroyed. It is not the remedy provided in the statute that is invoked, but a remedy which a court of equity always delights to give, viz.: one which prevents the commission of a fraud upon one party by the other, and it will always do so when, as in
The order of the court below dissolving the injunction is
Reversed.
Dissenting Opinion
(dissenting). — I do not concur in the conclusions of the opinion just announced, and desire briefly to set forth the grounds of my dissent. The principal question involved is this: when a tenant leases property for a term of years, does the lien of the landlord at the commencement of the term attach upon the property brought upon the demised promises for the rent to accrue during the entire term ?
The majority opinion answers this question in the affirmative. It is based upon the prior adjudications of this court. I propose, therefore, first, to consider how far those adjudications definitely settle the question. In the case of Grant v. Whitwell, Marsh & Talbott, 9 Iowa, 152, it was held, that property levied upon by attachment, and removed from the demised premises, was still affected by the lien of the landlord for rent accruing subsequently. Wright, Ch. J., dissented, although no dissenting opinion seems to have been filed. The case of Carpenter v. Gillespie, 10 Iowa, 592, is reported in the appendix in less than four lines, and does not show that the question here presented was involved or received attention. Upon the contrary, as that opinion was written by Mr. Justice Wright, who, in the subsequent case of Nesbitt v. Bartlett, 14 Iowa, 485, adhered to his former opinion in Grant v. Whitwell, the only reasonable inference is, that this question was not involved. In the case of Doane & Co. v. Garretson, 24 Iowa, 351, the defendant took possession of goods under a chattel mortgage, and was afterward served with garnishee process. At the time he took possession of the goods, a certain amount of rent was due upon a store in which the
I do not say that these provisions are unnecessarily severe. It may be that they are dictated in wisdom, and are promotive of the best interests of society. But it does seem to me that there can be but little necessity or excuse, for extending, by judicial construction, beyond them natural import, provisions so harsh and summary.
If the lien, to the extent claimed by the majority, exists, it exists in consequence of the statute, and enables the landlord effectually to prevent the sale of any property used upon the premises during the term. The object of the sale is not material. The hen exists as well when the purpose of the sale is iona fide as when it is fraudulent. A sale for any purpose would have a tendency to divest the lien, and hence infringes upon the landlord’s rights. The tenant, having a valuable piano, the luxury of which he finds himself unable longer to support, could not sell the same with a view to using the proceeds in support of his family. The lien which attaches at the commencement of the term compels him to keep it upon the leased premises, throughout the term, however long it may be, for the security of the landlord for rents which may accrue. It is useless to dilate upon the restraints of trade, the inconvenience, the hardship, the positive oppression which such a doctrine involves.
The building for which rent is claimed in the case at bar is a hotel, and was leased for five years, at a monthly rent of $833.33-§-, being $10,000 a year, or $50,000 for the entire term. The tenant brought upon the premises furniture and other things necessary for the conduct of his business, of the alleged value of $13,000. Now, if any commercial revulsion, or change in the center of business, should render such an amount of furniture unnecessary and
Law is declared to be tbe perfection of human reason. May we not web doubt tbe perfection of that reason which leads to consequences so oppressive, so detrimental to tbe interests of society, so opposed to every reasonable sense of justice ? In my opinion tbe lien of tbe landlord in this case did not attach upon tbe furniture brought into tbe demised premises, for tbe sum of $50,000, tbe rent reserved for tbe whole term. Upon tbe contrary, in my judgment, as tbe rent was payable monthly in advance at tbe commencement of each month, tbe landlord’s hen attached for one month’s rent.
Entertaining these views, I think tbe injunction was properly dissolved, and that tbe judgment below should be affirmed; but tbe majority say it shall be
Reversed.