Boyd v. Stipp & Harlan

Evans, J. —

It appears from the petition that the plaintiff leased- his land to one Grove for a term beginning January 5, 1907, and ending March 1, 1908. The rent was made payable February 1, 1908. It appears also therefrom that the rent is unpaid; and that some time prior to March 1, 1908, the tenant sold to the defendants, who were dealers in grain, several hundred bushels of oats, and the same were received by the defendants and disposed of by them. This action was begun May 25, 1909. The ground, of the demurrer was that the action was barred because it was not brought within one year after the rent was due nor within six months after the expiration of the term of lease. • >

*278 Section 2992 provides as follows: “A landlord shall have a lien for his rent npon all crops npon the leased premises, and upon any other personal property of the tenant which has been used or kept thereon during the term, and not exempt from execution, for the period of one year after a year’s rent falls due, but such lien shall not in any case continue more than six months after the expiration of the term.” Section 2993 provides that such lien may be enforced “by the commencement of an action within the period above prescribed.” It was held in Nickelson v. Negley, 71 Iowa, 546, that the period of limitation above prescribed was applicable to an action for damages against third parties for the appropriation of grain which was subject to the landlord’s lien. The case at bar is ruled at all points by the cited case. Counsel for appellant does not contend otherwise but insists that the Nickelson case should be overruled.

His contention is that his action is one for damages for conversion of property, and that he had made demand upon defendants prior to March 1, 1908, and while his lien was in effect. He insists, therefore, that he is entitled to the same period of limitation as obtains in any other action for conversion. There is something to be said for this view. It was well put by the able dissenting opinion of Mr. Justice Eeed in the Nickelson case. We are satisfied, however, that we ought not to overrule that case. Hnder our previous holdings, a purchaser from a tenant in such a case is deemed to take the property subject to the lien. The landlord is not deemed to have lost his lien because of the wrongful sale. He may pursue the property in his proper action notwithstanding the sale. After the purchaser has appropriated the property, he may recover damages for such appropriation. The measure of his recovery, however, is not necessarily the value of the property, but the value of' the incumbrance. Beck v. Minn. & Western Grocery Co., 131 Iowa, 62 .

*279 Tbe right of action in favor of the landlord against the purchaser from the tenant is deemed a method of enforcement of the landlord’s lien. The existence of the lien is essential to such action in the first instance. The theory of the Nickelson case is therefore that when the lien ceases, by the operation of the statute, all right of action based thereon necessarily ceases also. There is much force of reason in this conclusion. Such a rule is manifestly salutary in its general operation, and we are satisfied with it. The demurrer was properly sustained and such will be the order in each case.

The judgment below is accordingly affirmed.