Mills v. Hamilton

Day, J. 1. landlord and tenant: attornment: mortgage. I. The defendant does not deny that he entered upon the premises and was about to remove the wood-shed as alleged. He seeks to justify his action through the attornment from Heaton, and claims that thereby he became entitled to the possession of the premises. It is not claimed that there was any sale under the defendant’s judgment of foreclosure, and it is admitted that a right of redemption still existed under the Mary Hickson foreclosure sale. During the year for redemption the mortgagor is entitled to the possession of the premises. Barrett v. Blackmar, 47 Iowa, 565. It is claimed that the attornment to defendant is valid under section 2013 of the Code, which is as follows: “The attornment of a tenant to a stranger is void, unless made with the consent of the landlord, or pursuant to or in consequence of a -judgment at law or in equity, or to a mortgagee after the mortgage has been [109] forfeited. ” It is claimed that the mortgage to Hamilton was forfeited by the non-payment, at maturity, of the note secured, and that thereupon the tenant in possession had the right to attorn and transfer the constructive possession to defendant. This cannot be the meaning of this section. Under such a construction all the decisions of this court holding that the legal title and right to possession are in the mortgagor, until after foreclosure and expiration of the year for redemption, could be evaded and nullified in all cases where the mortgaged property is in possession of a tenant. The decisions relied upon by appellant were based upon the common law idea of a mortgage, under which, in default of payment at the time named, the mortgagee was entitled to possession of the mortgaged premises, and might maintain an action of ejectment therefor. We are satisfied that under this section there can be no valid attornment until after foreclosure and expiration of the period of redemption, where the property is sold subject to redemption. 2. injunction: dissolution of. It is claimed that the injunction should have been dissolved because the acts complained of were not were beneficial to the premises. The motion to dissolve was made upon the petition and answer. No proof seems to have been introduced. The answer alleges that the acts done by defendant were beneficial, but the allegation, unproved, furnishes no basis for the dissolution of the injunction. 3 _. damages: action, III. It is claimed that the injunction should have been dissolved because the petition contains no averment that the damage is irreparable, or that defendant is .not responsible. The Code, § 3386, provides that “in all cases' of breach of contract or other injury, where the party injured is entitled to maintain and has brought an action by ordinary proceedings, he may, in the same cause, pray and have a writ of injunction against the repetition or continuance of such breach of contract or [110] other injury, or the committal of any breach of contract or injury of a like kind, arising out of the same contract or relating to the same property or right, and he may also, in the same action, include a claim for damages or other redress.” It cannot be doubted that, admitting the allegations of the petition to be true, the plaintiff is entitled to maintain an action by ordinary proceedings for damages. Under this section he may, in aid of such action, have an injunction without, as we think, 'alleging that he will sustain irreparable injury, or that the defendant is insolvent. If it be said that this action is not brought by ordinary proceedings, under section 3386 of the Code, but is an action in equity, the answer is that “an error of the plaintiff, as to the kind of proceedings adopted, shall not cause the abatement or dismissal of the action, but merely a change into the proper proceedings, and a transfer to the proper docket.” Code, § 25M-. The plaintiff asks damages for the trespass, and an injunction against its continuance or repetition. The relief asked is fully provided for in section 3386 of the Code, and is consistent with the allegations of the petition. If plaintiffs have made a mistake in entitling their petition in equity, the injunction should not, on that account alone, be dissolved. The court did not err in continuing the injunction till the hearing. Affirmed.