Stoaks v. Stoaks

McClain, J. This appeal presents two questions: First, alleged error of the court in making the judgment for alimony in favor of plaintiff a prior lien upon the property of defendant, which had been attached in the divorce proceeding as against intervener’s claim for rent due; second, the alleged error in refusing to intervener an injunction for the preservation of his lien for rent not yet due at the time the decree was entered. 1. Divorce:judgment for alimony: priority of liens. I. The intervener, as landlord, had a lien upon the crops grown by defendant on the leased premises, and upon the domestic animals, farm machinery, and other personal property of the defendant used or kept thereon, not exempt from execution. Code, sec- . * . . _ tion 2992. This lien. was prior to the lien created by plaintiff’s attachment and judgment for alimony on -the attached property, so far as it consisted of domestic animals and farm machinery not exempt from execution; but plaintiff’s lien under her attachment and judgment was prior as to so much of the property as was exempt from execution. Out of the property levied upon the defendant was entitled to hold as exempt, two cows, five hogs, a team of two horses, with harness and a wagon or buggy (Code, section 4008), and he was entitled to make his own selection. It appears that there was other property on the premises belonging [63] to defendant not exempt from execution,- subject to tbe landlord’s lien of intervener. As defendant failed to make any selection of tbe property wbicb he should claim as exempt from tbe landlord’s lien, it was impossible for tbe court to say wbicb specific property could be' held by-plaintiff under, her attachment as against tbe intervener’s lien, and wbicb portion of tbe property was subject to such prior lien, and under these circumstances we think tbe court was justified in finding from tbe evidence that, after tbe satisfaction of plaintiff’s judgment for $400 out of tbe attached property, tbe defendant would have remaining sufficient property subject to intervener’s lien to satisfy bis full claim for rent due and to become due. There was, therefore, no error prejudicial to tbe intervener in directing tbe satisfaction of tbe plaintiff’s judgment out of tbe attached property. The cases 'relied upon for appellant are those in wbicb tbe landlord, having a lien, is held entitled to protection as against tbe creditor of the tenant in an action at law. Atkins v. Womeldorf, 53 Iowa, 150; Neeb v. McMillan, 98 Iowa, 118. In tbe case before us tbe court in an equitable proceeding bad acquired jurisdiction of property as to wbicb tbe plaintiff and intervener bad. conflicting claims, and it was plainly within the scope of its jurisdiction to determine bow this property should be subjected to these respective claims, so as to protect each claimant so far as possible. When it was made clear to tbe court that plaintiff’s claim for alimony might be satisfied out of tbe attached property without impairing tbe security of tbe intervener as landlord for bis rent, we think tbe court properly directed such disposition of tbe property as would effectuate this result, and that tbe intervener has no ground to complain of tbe decree. As affording some support for this conclusion, see Sesterhen v. Sesterhen, 60 Iowa, 301. [64] 2. Landlord'slien: . [63] II. As to intervener’s prayer for an injunction protecting bis lien for rent not yet accrued against any acts [64] on the part of plaintiff or defendant which should impair his security, it is sufficient to say that Intervener s security was m no way threatened. When plaintiff’s judgment for alimony should be satisfied out of the attached property, it being clear under- the evidence that there was sufficient property held under attachment to satisfy such judgment, plaintiff would have no remaining claim which she could enforce against other property of the defendant, and there is no allegation of any purpose or intention on the part of defendant to put his property beyond the reach of intervener, seeking to enforce in the future his landlord’s lien. The landlord is entitled to an injunction to protect his lien only as against some threatened interference therewith. In the absence of some threat or attempt on the part of the tenant or others to deprive the landlord of the protection of his lien, he is not entitled to equitable relief by injunction. Carson v. Electric Light & Power Co., 85 Iowa, 4A-,Wal~ lin v. Murphy, 117 Iowa, 640; Garner v. Cutting, 32 Iowa, 547. The decree of the trial court is affirmed.