Tomson v. Lerner., 3787.

• Decision Date: 06 September 1933
• Docket Number: No. 3787.,3787.
• Citation: 37 N.M. 546,25 P.2d 209
• Parties: TOMSONv.LERNER.
• Court: New Mexico Supreme Court

37 N.M. 546

25 P.2d 209

TOMSON

v.LERNER.

No. 3787.

Supreme Court of New Mexico.

Sept. 6, 1933.

Appeal from District Court, Lea County; G. A. Richardson, Judge.

Suit by Mrs. J. N. Tomson against Mrs. J. G. Lerner, wherein defendant interposed claim for exemption. From a judgment allowing exemption to defendant, plaintiff appeals.

Reversed and remanded, with instructions.

Tenant who moves on landlord's premises concedes to landlord right to hold tenant's chattels for rent due until paid or secured, and waives exemption as effectively as if he gave to landlord chattel mortgage on such property. Comp.St.1929, §§ 48-101, 48-111, 48-117, 82-404, 82-411.

Albert Morgan, of Hobbs, for appellant.

W. H. Patten, of Lovington, for appellee.

ZINN, Justice.

From the stipulated facts and record we find that the appellee is the head of a family, a widow, living with a minor son depending upon her for support. She is not the owner of a homestead, but is the owner of personal property consisting of household goods worth about $100 and a stock of merchandise of the approximate value of $350. She is indebted to the appellant in the approximate sum of $700 for rent due on a store conducted by appellee and wherein said chattels are located. Appellant, claiming a landlord's lien, sought to foreclose on the merchandise and household goods, and appellee interposed her claim for exemption under Comp. St. 1929, § 48-117, in the sum of $500, and section 48-101, in the sum of $220, and judgment was rendered in favor of appellee allowing her an exemption of personal property of the value of $500 in lien of a homestead exemption, on the theory, as stated by the trial court, that “the landlord's lien does not attach to exempted property,” from which order and judgment the plaintiff below, appellant here, has brought this appeal.

The only contention of appellant is that the court erred in granting the appellee her exemption as against the landlord's lien.

In this case it was necessary for us to make an independent search of authorities. We have examined the cases cited in 16 R. C. L. 501, the cases cited in 25 C. J. 100, the cases cited in the note in 9 A. L. R. 310, the cases in the note in 24 L. R. A. 812, the cases in the note in 119 Am. St. Rep. 128, and also other cases. There are very few cases directly in point. The majority of the cases examined by us are those wherein an exemption is claimed as against an agricultural landlord's lien.

The case nearest in point of facts to this case is that of Ex parte Barnes, 84 Ala. 542, 4 So. 769. By Constitution and statute it was provided that the personal property of any resident shall be exempted from sale or execution, or other process of any court, issued for the collection of any debt. Landlords of any storehouse, dwelling house, or other building were granted a lien by statute on the goods, furniture, and effects belonging to the tenant, for rent, which shall be superior to all other liens, except those for taxes. The court said: “Under the facts shown in this record, the lien for rent was paramount to the claim of exemptions. And there is no hardship in this. The merchandise was intended for sale, with a view to the profits to be realized from the sale. A store-house for its preservation, exhibition and sale, was as necessary to the business as was the merchandise itself. The two together constituted an occupation, with probable emolument. Sound commercial morality forbids that all the advantages shall inure in one direction, while nothing but losses are entailed in the other.” Ex parte Barnes, 84 Ala. 540, page 543, 4 So. 769, 770.

Finding a division of authorities on the question presented, we are left to our own reasoning and to an interpretation of our statutes. It has been the accepted version in this state, extending over a period of many years, which version is based on a logical interpretation of the law, that an exemption cannot be claimed against a landlord's lien.

Comp. St. 1929, § 48-117, grants an exemption from levy and sale of real or personal property not exceeding $500 in value, in lieu of a homestead, which exemption is in addition to the chattel property designated by secion 48-101.

By section 82-404 landlords have a lien on the property of their tenants which remains in the house rented, for the rent due, or to become due, by the terms of any lease or other agreement in writing, and said property may not be removed until the rent is paid or secured:

By section 48-111 the owner of real estate can by mortgage or other act waive his exemption. Section 48-117 is in lieu of the homestead provided by section 48-111, and we must look to 48-111 to interpret, if possible, the policy of the state in this instance. The lien policy in favor of the landlord was adopted Jan. 2, 1852, C. L. 1865, c. 77, § 14, many years before the exemption policy. The exemption statute was adopted in 1887, being chapter 37 of the Laws of 1887. It is apparent that the Legislature favored liens as against exemptions in the very law granting...