Smith v. Dayton

94 Iowa 102 | Iowa | 1895

Deemer, J.

1 2 We will first dispose of plaintiff’s appeal. He claims that a landlord’s lien should be established for the balance he allege® to be due upon the eight hundred .and seventy-five dqllar note. We do not think so1. . He has so' blended his accounts with reference to the rents for the years 1890 and 1891 with other items, and has so acted with reference to the securities taken, that we think he has waived any Men he might have had for the rent reserved in the lease for these years. Erickson v. Smith, 79 Iowa, 374; Rollins v. Proctor, 56 Iowa, 326; Kendrick v. Eggleston, 56 Iowa, 128. In order to have a Men for rent, the landlord must show that his claim is for rent; and if he so blends the rent account with other items that it is impossible to separate the one from the other, or if he so' confuses them that when payments are made it is impossible to say which is paid, the rent or some of the other items, he is presumed to have waived his right to a lien, and to rely upon the personal responsibility of the tenant or the security taken. This presumption is further sustained by the fact that plaintiff took a mortgage upon certain personal property of the tenant to> secur e the one thousand two hundred dollar and eight hundred and seventy-five dollar notes, and relied upon and enforced it by sale of the property covered by the mortgage; and, whatever may be the true rule with reference to waiver in cases where such fact alone appears, it is at least corroborative of the other facts tending to show waiver. Rollins v. Proctor, supra. Plaintiff insists that he should have judgment for the balance remaining due on the one thousand two hundred dollar and the eight, hundred and seventy-five dollar notes, independent of his right to a Men. Had he brought his action on these notes there would be much force in his position. The action, however, is predicated upon the lease and not upon the notes, and neither of the notes have been produced or tendered for cancellation. If he would have judgment for the rent he claims to be due for the years 1890 and 1891, by the terms of the lease, he ought to surrender the notes which were given in part for the rent for these years. The lower court was right in dismissing this part of the claim without prejudice to. an action on the notes.

II. Defendant Dayton, in Ms answer, pleaded various counterclaims against plaintiff, which were disallowed by the court. We have examined each and all of these claims and find no merit in any of them.

3 III. After the receiver was appointed, Julia A. Dayton brought suit against the plaintiff, the sheriff levying writs, and the receiver, and recovered judgment against them for the value of two horses, which she claimed belonged to- her. The lower court deducted one hundred and Mnety-one dollars, the amount the two horses claimed by Mrs. Dayton sold for, from the amount found in the hands of the receiver, and this is said to be error. We think not. The •receiver was an officer of the court, and, if the court found he had property in,his hands not belonging to the defendant in action, he could order it turned over to the rightful owner.

4 IY. Complaint is made of the- action of the court in appointing a receiver. Under Code, section 2903, a receiver may be appointed in such a case, and!, in view of the nature of the property taken and the showing made, we tMnk the receiver was properly appointed.

5 Y. Numerous errors are assigned because the court refused to dissolve the various attachments and release the attached property. If it be conceded that some of these motions ought to have been sustained, yet no prejudice was wrought, for the reason that we hold a receiver was thereafter properly appointed to take charge of and sell the property, because plaintiff had either a statutory or contract lien upon the whole of the property. The landlord’s lien for rent for the year 1892 was not merged in the contract lien created by the lease, for the contract expressly recognizes the statutory lien, and does nothing more than create a lien upon the property exempt from execution, in-addition to that provided for by statute.

6 7 8 YI. Defendants Adams and Otto filed a cross petition, in which they claim that their mortgage lien is prior and superior to the lien of the plaintiff. The allowance made to plaintiff is for rent accrued during the year 1892, for which he held po other security than the statutory lien, and a contract lien upon the exempt property; and, as these defendants’ mortgage was executed after the property held by the receiver was taken upon the premises, their lieu is inferior and junior to the statutory lien of the plaintiff. But, as they bad no notice of plaintiff’s contract lien, — it not being recorded, — it is superior thereto'; that is to say, as to the exemptproperty,if there be any such, plaintiff’s lien by contract is inferior to that of defendants Adams and Otto. Bank v. Honnold, 85 Iowa, 352. We then have the question as to whether any of the property in the hands of the receiver grows out of the sale of the exempt property. The testimony on this point is as follows: Defendant Dayton testified: “At the time the horses were seized I was a resident of Des Moines county, farming at the time, and claimed as exempt the two horses, Black Prince and Topsy. The horse Black Prince is a Clydesdale stallion, eight years of age, used for breeding purposes. We did not work this stallion in 1892. The other animal I claim is named Topsy.” Plaintiff testified: “I was frequently on the farm in 1892, and never saw Black Prince used as a work horse.” It is apparent that these horses are not the team, or one of the teams, by the use of which the defendant Payton, as a farmer, habitually earned his living, and consequently .they are'not exempt under section 3072 of the Code. Defendants Adams and Otto would have a lien superior to that of plaintiff upon one of these horse;s as exempt under the section before referred- to, but the difficulty there is, there is no showing as to the value off this animal, and nothing to indicate what the receiver obtained for the horses separately. The lower court did not err in holding the lien of Adams and Otto junior to that of plaintiff upon the funds in .the hands of the receiver.

VII. Lastly, it is insisted that the court erred in the taxation of costs. Plaintiff was taxed with all costs made on the first writ, up h> the time of the levy of the second, and the costs of seizing a stallion ordered released, amounting in the aggregate to ninety-one dollars and twenty-one cents, and the defendants, with all costs subsequent to that time, amounting to three hundred and ninety-one dollars and sixty-eight cents. We see no error in this.

Some other errors are discussed by counsel, but they are all disposed of in what we have said, and the judgment of the district court is affirmed.