Welch v. Welch

• Citation: 238 N.W. 81,212 Iowa 1245
• Decision Date: 29 September 1931
• Docket Number: No. 40987.,40987.
• Parties: WELCH v. WELCH ET AL.
• Court: United States State Supreme Court of Iowa

212 Iowa 1245

238 N.W. 81

WELCH

v.WELCH ET AL.

No. 40987.

Supreme Court of Iowa.

Sept. 29, 1931.

Appeal from District Court, Audubon County; K. R. Cook and J. S. Dewell, Judges.

This is an action in attachment. Plaintiff's contention was sustained in part and overruled in part. Both parties appeal.

Affirmed on defendants' appeal; reversed on plaintiff's appeal.Chas. S. White, of Audubon, for appellant.

Graham & Graham, of Audubon, for appellees.

ALBERT, J.

The defendants were tenants on the farm of the plaintiff under a written lease dated August 25, 1928, and, to evidence the reserved rent, two promissory notes were executed, one for $800, due October 15, 1929, and the other for $1,280, due February 1, 1930. These notes being unpaid on August 30, 1930, plaintiff commenced suit thereon, aided by attachment. The principal defense made was that the action was not commenced in time.

The record shows that the notice for the commencement of this action was placed in the hands of the sheriff, petition filed and attachment issued and served on August 30, 1930.

Among the provisions of the lease we find: “The party of the first part * * * had this day leased unto the party of the second part the following described premises, towit, (here follows a description of the premises) * * * from the first day of March, 1929 to the 28th day of February, 1930, including both of said days.”

Section 10261, Code 1927, provides for a landlord's lien.

Section 10262 reads as follows: “Such lien shall continue for the period of one year after a year's rent, or the rent of a shorter period, falls due. But in no case shall such lien continue more than six months after the expiration of the term.”

The matter of disputation between the parties here is as to the construction and application of the above-quoted section. The claim of the defense is that, under the aforesaid section, the last day on which action could be brought was the 28th day of August, 1930, while the contention of the plaintiff is that the last day was September 1, 1930.

[1][2] The rules for computation of time are quite well settled in this state; the general rule, of course, being that the first day is excluded and the last day included, but we do not think this rule has any application to the situation before us. This limitation statute provides that the lien created shall not “continue more than six months after the expiration of the term.” The primary question therefore to be determined is when the term under this lease expired. Both parties seem to agree in their arguments that it expired at exactly midnight on the 28th day of February, 1930. This fixes the point of expiration. In other words, when this lease expired, no part, however infinitesimal, of the 28th day of February remained, and the next instant of time was on March 1, 1930.

[3] The intention of the Legislature here was that the lease must fully expire before this limitation commenced to operate. It says in so many words “after the expiration of the term.” While it is true that the term “after” has been held by the courts in some instances to be inclusive and in others to be exclusive, we think, under the wording of this statute, “after” is used in its ordinary signification, and means, under these circumstances, that the whole of February 28th must have passed before the limitation statute commenced to operate.

Defendants rely largely on Chicago Title & Trust Co. v. Smyth, 94 Iowa, 401, 62 N. W. 792, 793, in which a bill of sale was being construed covering a merchandise stock and net proceeds of sale “from and after April 1st.” The case laid down the general rule for the construction of this phrase “from and after” to be that “if it is from an act done it is inclusive, but if from a day it is exclusive.”

In the case at bar, if we attempt to apply this rule, it will be found that there was no act whatever done under this contract which terminated it, but the lapse of time alone accomplished that end.

Reliance is also placed on Arnold v. Board of Supervisors of Kossuth County, 151 Iowa, 155, 130 N. W. 816. In that case the question was as to the date on which a statute became operative. The act provided that it should “take effect and be in full force from and after its publication” in two named newspapers. It was published in such papers on April 19, 1909, and the holding of ...