Kahler v. Hanson

• Decision Date: 11 June 1880
• Citation: 6 N.W. 57,53 Iowa 698
• Parties: KAHLER AND OTHERS v. HANSON AND OTHERS.
• Court: Iowa Supreme Court

53 Iowa 698

6 N.W. 57

KAHLER AND OTHERS

v.HANSON AND OTHERS.

Supreme Court of Iowa.

Filed June 11, 1880.

Appeal from Clinton circuit court.

Action to recover rent due upon a lease. One of the defendants interposed an equitable defence. There was a judgment and decree for plaintiffs. Both parties appeal. The facts of the case appear in the opinion.K. W. Wheeler, for plaintiffs.

Cotton & Wolfe and Merrell & Howatt, for defendants.

BECK, J.

1. The petition declares upon a lease for a farm, executed by William Hanson and C. E. Dinehart, the plaintiffs being the lessors. The defendant Dinehart alleges, in a separate answer, that he executed the lease as surety for his co-defendant, who delivered to plaintiffs certain grain, and a note of the aggregate value of $208.97, to be applied in payment of the rent, but plaintiffs having failed to credit the payment upon the rent, and having applied it in payment of another debt due from Hanson; that he held certain chattel mortgages upon property of Hanson, including the grain delivered to plaintiffs, and that plaintiffs had a lien upon the grain for the payment of the rent due on the lease. Equitable relief is sought in the answer.

The court found that $136.22 of the sum for which defendants claim credit ought not to be so applied, but the balance of the sum was a payment upon the rent. From this decision both parties appeal, and assign various errors assailing the judgment of the court. The defendants insist that the case is to be tried as a law action in this court. It seems to have been tried as an equitable action in the court below, though the abstract is by no means clear upon that point. We think, however we may regard the case, the judgment of the court below must be reversed on defendant's appeal, and modified and affirmed on plaintiff's appeal. It becomes unimportant to determine the question whether the case is to be tried here as a law or equitable action.

2. We will proceed, first, to notice the objections made to the judgment by the defendants. These involve the determination of this question. Did the court correctly hold that defendants should have credit for the proceeds of the grain to the amount of $136.22? It is a question in the case whether Dinehart was the surety of Hanson, or they were co-tenants of the land. We think, whether Dinehart was a surety or co-tenant, the plaintiff could not, as against him, and without his consent, appropriate the grain raised upon the leased premises in payment of a claim he held, other than for rent, until the rent was paid.

There is no dispute that the grain for which defendants claim credit was raised upon the leased farm, and that Dinehart did not assent to the proceeds thereof being applied to the payment of the rent. The plaintiffs had a lien upon this grain for the rent. Now they cannot, as against the surety, abandon their lien and charge the defendants for a sum in arrears, which they could have realized by enforcing the lien. The City of Maquoketa v. Willey, 35 Iowa, 323.

3. If it be found that Dinehart was not a surety for Hanson, but a co-tenant under the lease, we conclude that the decision of the court as to the items now under consideration is erroneous. The case presents this state of facts: If the defendants were co-tenants the grain was their joint property, of which plaintiffs had full notice. Dinehart and Hanson, as co-tenants, jointly owed plaintiffs for the rent of the farm. Hanson owed a separate and individual debt. That plaintiffs, in absence of the assent of Dinehart and Hanson, could not apply the value of grain delivered to them by Hanson as joint property of defendants upon Hanson's individual debt, cannot be doubted. That Dinehart did assent to such application is, we think, not claimed, and we conclude, upon the whole testimony, that Hanson's assent is not established. He testifies positively that he did not authorize the payment to be applied to his individual debt. Two of the plaintiffs testify that he did so authorize it. The testimony of Hanson is against his interest, or his interest is, at least, balanced between the parties. The testimony of plaintiffs is all in accord with their interest. Besides, if we credit their testimony, we must convict them upon their own word of an intention to wrong Dinehart, which was shared by Hanson. We will give credit to Hanson's testimony, which acquits them all of a...