Garner v. Cutting

Miller, J. 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' — 550 — lease, or when the goods are brought'upon the premises, which are, in effect, the same, or when the rent has become due, or whether not until the suit is brought to give effect to it, and the attachment is laid % ” After a discussion of the question thus stated, the learned judge concludes in these words: “ 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 — 551 — note in Grant v. Whitwell et al., 9 Iowa, 152, which is clearly incorrect. The very point decided in that case was, that the landlord did not have, under tbe statute, a lien simply from tbe time be commenced bis action, nor yet tbat bis lien was limited to and attached only upon tbe maturity of rent, but tbat this lien given by tbe statute was a security wbicb existed “ beforehand ” for the payment of the rent as it became ¿hue; not tbat tbe rent must first fall due before tbe statute afforded any security for its payment but tbat it was a present security for its payment when it became due — an existing and continuing security tbat tbe rent should be paid when and as it became due. This question was directly involved, for the plaintiff was claiming tbat be bad a lien for rent not due when be brought bis action, but wbicb bad fallen due after tbe same was brought, and tbe decision of tbe court was in bis favor. Wright, C. J"., dissenting, and bolding tbat tbe property was only liable for tbe amount of tent due at tbe time tbe attachment was levied and tbe property removed thereunder. 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 — 552 — case of a fraudulent attempt to destroy this security on the part of the lessees. 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 — 553 — that the same relief -would, be afforded to a landlord^ having a lien on personal property for his rent, to restrain a destruction or waste thereof by the tenant. .In the case of a mortgage of personal property, where the debtor is about to remove it beyond the reach of his creditor, the mortgagee may have an injunction to prevent its removal. 1 Hilliard on Mortgages (3d ed.) 227, and cases cited in note 1. The reason assigned for granting an injunction in such case is, that “ otherwise a fraudulent mortgagor might, at his pleasure, deprive the creditor of all benefit of his mortgage.” "We can see no good reason why a landlord, having a lien for rent, is not equally with a mortgagee of chattels, entitled to the same remedy to protect him in his security and to prevent a fraudulent tenant from depriving him of all benefit of his lien. A mortgagee holds the mortgaged property as security for his debt. He is entitled to the aid of a court of equity to preserve and protect such security against the wrongful or fraudulent acts of the mortgagor which may impair his security. His lien exists by virtue of a contract with the mortgagor. So a landlord has a lien, a security for his rent, upon the personal property on the premises, which exists by virtue of the statute. This is the only difference, that the lien in one ease arises solely upon contract, in the other it exists by statute which enters into and becomes part of the contract. There can be no good reason why thel andlord is not as much entitled to have his security protected against the wrongful and fraudulent acts of his tenant, which will result in impairing and destroying his security, as exists in favor of a mortgagee of either lands or chattels. He cannot sue for his rent before it falls due, any more than a mortgagee can foreclose before the maturity of his mortgage, and the mischief to be prevented is the same in each case, viz.: the fraudulent depreciation of or injury to the security; and on principle both credi — 554 — 'tors are alike entitled to the relief which a court of equity-alone can afford in such cases. 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 — 555 — tbia case, the law does not afford a Ml and adequate remedy. The order of the court below dissolving the injunction is Reversed.