124 Iowa 543 | Iowa | 1904
Section 2992 of the Code provides that “ a landlord shall have a lien for his rent upon all crops grown upon all the leased premises and upon any other personal property of the tenant which has been used or kept thereon during the term,” etc. In the succeeding section it is provided that “ the lien may be effected by the commencement of an action * * ' * for the rent alone, in which action the landlord will he entitled to a writ of attachment upon filing * * * a verified petition,” etc.. It has been held that the word “ effected,” as used in section 2993, has the same meaning as the word “ enforced.” Nickelson v. Negley, 71 Iowa, 546. We are agreed that the lien granted by the statute is nothing more nor less than a right on the part of the landlord. to resort by appropriate proceedings to the .property of his tenant, subject to such lien, to satisfy his demand for rent due; and this to tire exclusion of purchasers or incumbrancers whose rights have accrued subsequent to the time the lien attached. Thus a creditor of the tenant cannot, by levy, acquire priority over theTandlord’s lien for rent (Atkins v. Womeldorf, 53 Iowa, 150); and the lien is superior to that of a chattel mortgage executed by the tenant covering property kept or used upon the demised premises (Downie v. Christen, 115 Iowa, 364). So, too, one who purchases from a tenant property to which the lien has attached takes subject to the rights of the landlord (Neeb v. McMillan, 98 Iowa, 718; Hays v. Berry, 104 Iowa, 455), and the landlord, in case of such sale and purchase, may pursue and seize the property upon which he has a lien (Richardson v. Peterson, 58 Iowa, 724); or he may sue for its. conversion (Holden v. Cox, 60 Iowa, 449; Church v. Bloom, 111 Iowa, 319). As we have seen, the lien may be effected or “ enforced ” by the bringing of an action to recover the rent due. The landlord is not bound to resort to an attachment for the preservation or enforcement of his lien. He is entitled 'to the issuance of a writ if he asks therefor. In effect this is the language of the statute. See also, Bartlett v. Gaines, 11 Iowa, 95.
The other members of the court, Justices Weaver, Ladd, and McClain, think that, inasmuch as the judgment for rent was a general one, and did not in any manner attempt or profess to declare or establish a lien in favor of the judgment plaintiff, nor designate or point out any specific property upon which execution might be levied, there was no authority for the levy made by the defendant Collins upon the property in question. Further, it is their thought that the execution, being general, authorized and directed the officer to seize and sell the property of the judgment defendant, and such only; that it afforded no justification for. a levy upon the property of a third person, who was not a party to the proceeding upon which the. judgment was foundéd, and whose rights had not been in any manner determined, under the pretense or claim of a lien which had not been adjudicated or established;. that such levy would be clearly in excess of the command of the writ, and would render the officer a trespasser.
Accordingly, and pursuant to Code, section 195, the judgment of the trial court will stánd affirmed.