56 Iowa 211 | Iowa | 1881
I. The plaintiffs allege in their petition that in'1 December, 1873, they leased, by a written instrument, a certain store building, in the City of Burlington, which they were about' to erect, to defendants Greenbaum, Schrocler & Co.,, for the term of ten years from the completion of the building, and that the defendants entered and occupied the'
On the 24th of May, 1880, the mortgagees, as trustees for themselves and others, filed their answer and a cross bill.
- They allege in the cross' bill that-they acquired the legal ■title of the goods described in the mortgage, as well as all .'other goods added thereto by the mortgagors, and that when the mortgage was executed there was no rent due plaintiffs. Jt is further shown by the cross bill that certain creditors oí Greenbaum, Schroder & Go.,, other than those secured by mortgage, commenced action on their claims, and a temporary receiver was appointed to'take possession of the goods; that afterwards E. S. Taylor was appointed receiver, and was authorized by the order of the court to continue the business by selling off the stoek and replenishing the same, so far as was necessary to conduct the business; that on the 31st day of March, 1880, the receiver .finally closed the business of the store, having disposed of all the goods.- ■ He paid to plaintiffs all the rent due to that day, and offered to give possession of the property by tendering the keys of the building, which were not accepted by plaintiffs, and that the receiver holds about $25,000 in money, the net proceeds of the goods, subject to the order of the court. ■ The defendants claim in their cross bill that the plaintiffs’ lien continued only while the prem-i is.es were occupied and used by the lessors; that when the property was sold and removed, under the order of the court; the lien terminated, and that the funds in the hands of the receiver should be appropriated to the payment of the debts secured by the mortgage; they ask for relief accordingly. ■ ;
¡ It is shown by an amended abstract that all the suits brought by the creditors, including plaintiffs’ action, were consolidated on the 28 th day of June, 1879, and on’the same 'day the receiver was appointed. • The oi’der making.the appointment provides, that it shall be “wjthpnt prejudice. to the existing
1. Have plaintiffs a landlord’s lien under the statute for 'rent to accrue, or, in other words, does their lien attach to property of the tenant used upon the premises to secure rent which will fall due in the future, as provided in the lease?
2. Is the landlord’s lien of plaintiffs defeated by the conversion of the goods into money, by the receiver, under order of the court? * ' ■
> Counsel for defendants attempt to distinguish these casesj Or the first two cited, from the case at bar, on the grounds that the tenants in those cases were either disposing of the property in a manner not in accord with the due course of trade, or with a fraudulent intent. In each case the jwoperty of the tenant had been transferred by a chattel mortgage. It was held these transfers would not defeat the landlord’s lien for rent to accrue during the term. The decision is- not placed upon the ground that the transfers were made in an unusual manner or for a fraudulent purpose, but upon the ground the landlord’s 'lien attached to the property when it was brought upon the premises and could be enforced to present the transfer of the title of the property or its removal.;
III. The second question above stated now demands consideration.
. If these considerations leave doubts in the mind,' they are surely removed by the language of the order appointing the receiver, which declares that “ this order is without prejudice to the existing rights of any one of the creditors, or the merits of the controversies between them or any of them.”-
. The foregoing discussion disposes of all points in the case. The judgment of the District Court is
Aeeirmed.