Brody v. Cohen

Granger, J. [311] 1 2 [310] I. It is the right of possession, not of ownership, that is involved in the inquiry. That right depends,, not on ownership, but on liens, one being that of a landlord, and the other that of a mortgagee. The landlord’s lien is. prior in point of time, because the goods were on the leased premises before the mortgages were executed. Gilbert v. Greenbaum, 56 Iowa, 211. The landlord was not entitled to the possession of the property until his rent, or some part of it, became due. In other words, there must be rent due311 before the action to enforce the lien can be brought. When rent is due,. the property may be taken under the lien by attachment. In this case, when the mortgagee took possession of the property, no rent was due, and his mortgage gave him the right to possession; but, in taking such possession, he must do-so subject to a lien that existed and might become enforceable. That right of the landlord existed when he took his mortgages. The question, then, comes to this:. A mortgagee of goods, on which there is a prior lien- for rent,not yet enforceable, takes possession of the goods, and, while-he holds them, the landlord’s lien becomes enforceable. Can the landlord, by virtue of his writ, take the property from the-mortgagee? The question, thus far, seems hardly doubtful. The superior right of the landlord settles the proposition in his favor. His lien is first, and the possession is necessary for its enforcement. But the query goes one step further: Can the mortgagee come now, by replevin, and take the goods from the officer holding them by virtue of the landlord’s writ ? Such is the inquiry made by the question certified. As bearing on the question, appellant says the-mortgagee had the legal title and right of possession, and-had taken possession with.the knowledge of the landlord, and without objection. We assume the statement to refer to the-time when he took possession, and its correctness may be conceded. The landlord then had no right of possession, for no-rent was due. To the mere fact of possession he had no-right to object, for the mortgage contract fixed that right as between mortgagor and mortgagee. But the possession went, from mortgagor to mortgagee, affected by the landlord’s lien,which was prior, and might, by a default in payment, fix a right of possession for the purpose of enforcing the lien. It is said the landlord is not a party to this suit. That is true; but the appellant brings the suit, not against the landlord, but against the officer, to test his right of possession under the landlord’s writ; so that the question is, what rights has the-landlord enforceable under the writ that an officer may [312] justify under a writ by virtu© of which, he holds possession of property, see Kingsbury v. Buchanan, 11 Iowa, 387; Parsons v. Hedges, 15 Iowa, 119. It is a rule of universal recognition, we think. Indeed, it would be a strange doctrine that would deny to an officer, legally in the possession of property under legal process, the right to assert and prove that his possession was legal, as against one who might, by action, attempt to disposses him. It seems to be appellant’s thought that, as the mortgagee was in lawful possession of the property, it took the judgment of a court, in a proceeding in which he was a party, to devest him of the possession. This can mean no more than that the mortgagee came legally into possession of the property. To admit that 'he was lawfully in possession, as against the landlord, when this suit was commenced, would, of course, end all controversy. The mortgagee did take the property lawfully, and so held it till other rights accrued; and when they accrued, so as to include a right of possession by the landlord, it did not need an adjudication to make it a right. An adjudication would only be to determine an existing right, and enforce it. Whenever the debt for rent matured, and the lien was being ■enforced, the right of possession for, that purpose became fixed in the landlord, and the right of possession in the mortgagee, as against the landlord, was lost. Our conclusion leads to a negative answer to the question, and the judgment will stand AFFIRMED.