Brody v. Cohen

• Decision Date: 12 October 1898
• Citation: 106 Iowa 309,76 N.W. 682
• Parties: BRODY v. COHEN, CONSTABLE.
• Court: Iowa Supreme Court

106 Iowa 309

76 N.W. 682

BRODY

v.COHEN, CONSTABLE.

Supreme Court of Iowa.

Oct. 12, 1898.

Appeal from district court, Polk county; T. F. Stevenson, Judge.

Replevin for the possession of two safes, being a part of a stock of goods. The basis of plaintiff's claim is two chattel mortgages. The defendant's claim to the possession is that, as constable, he took possession of the safes by virtue of a landlord's attachment issued out of a justice's court in a suit wherein William Johnson was plaintiff and C. W. Chittenden was defendant. The cases involve less than $100, so that they come to us on certificates from the trial judge. The certificate embraces two questions, but we see no difference in the two, as legal propositions, and hence we set out one, as follows: (1) Where one leased certain premises, under which the lessee took possession, with a stock of goods and furniture not exempt from execution, and while said stock of goods was on said premises in said lessee's possession, during the time of said lease, said lessee executed two chattel mortgages on said stock of goods, which are unsatisfied; and thereafter the mortgagees took possession of said stock of goods under and by virtue of said mortgages, and removed the same from said leased premises, with the knowledge of the lessor, and without objection on his part, and retained possession of the same until taken from him by said writ hereinafter mentioned; and before the expiration of said lease, and some time after said removal, rent became due under said lease, and the lessor brought an action by landlord's attachment against the lessee to recover the matured rent, without making the holder of the mortgages party to the action, and caused a writ of landlord's attachment to be levied on said property,--can the holder of said mortgages recover possession of said property as against the officer executing the said writ, by action of replevin, as provided for by statute to recover possession of specific personal property, and has he the right to recover in an action for possession of said property as against the officer holding the property under and by virtue of the writ of landlord's attachment? There was a judgment for defendant, and the plaintiff appealed. Affirmed.Ayers, Woodin & Ayers, for appellant.

Read & Read, for appellee.

GRANGER, J.

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 mortgagee. The landlord's lien is prior in point of time, becausethe goods were on the leased premises before the mortgages were executed. Gilbert v. Greenbaum, 56 Iowa, 211, 9 N. W. 182. 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 due before the action to enforce the lien can be...