56 Iowa 326 | Iowa | 1881
In October, 1877, the plaintiff leased a livery barn, the premises involved in this controversy, to L. Wells, for a period of five years, at a monthly rental of $54.15. In July, 1878, Wells sold his livery stock to Blyler & Skinner, they assuming the unexpired term of said lease. Plaintiff accepted them as tenants in lieu of Wells. Skinner sold his interest in the stock and lease to the defendant Proctor. Proctor sold to Mrs. Barrett, and in December 1878, Blyler and Mrs. Barrett made a division of stock, so that, instead of each owning an undivided half, each owned one half in severalty. After said stock had been so divided, December 31, 1878, Mrs. Barrett’s livery stock in the stable was purchased by the defendant Proctor. Blyler and Proctor thus became occupants of the premises, and tenants of plaintiff in virtue of the lease which she had made to Wells two years before. Blyler and Proctor were not partner’s. Each owned a livery stock. Both stocks were in the same livery barn, and both proprietors were occupying the premises by virtue of the lease executed to Wells in 1877, and expiring in 1882.
On the 5th day of March, 1879, the defendant Proctor executed to the intervenor a note for $350, payable November 5th, after date. On the same day, to secure this note, he executed a chattel mortgage upon a portion of his stock in the livery barn in question, being property upon which the plaintiff claims a landlord’s lien. This mortgage was filed for record February 14th, 1880.
The taking of personal security merely raises a presumption of the waiver of a vendor’s lien, which presumption may be rebutted by proof. See Kendrick v. Eggleston, ante, 128, and authorities cited. The plaintiff testifies as follows: “I knew I had a landlord’s lien upon all there was in the stable, and it would make it still stronger by Mr. Young’s signature. I relied upon that security, and it was his proposition to give Mr. Young as further security.” This evidence clearly shows that it was not the intention to waive the landlord’s lien, and rebuts whatever presumption of waiver arises from the acceptance of the signature of Young.
The court did not err in dismissing intervenor’s petition.
Affirmed.