Hayden & Co. v. Goppinger

24 N.W. 743, 67 Iowa 106

Opinion

Beck, Oh. J.

1. judgment: ing\reetedd" lTndfsubsegage o?bfuidmg: priority oiiien. I. The petition alleges that plaintiff recovered a valid judgment against one Floyd; that subsequently Eloyd executed a chattel mortgage to defendants Goppinger, on a building situated upon certain lots in "Webster City, to secure the payment of a promissory note executed by him; and that Eloyd 5 , J J J . has since died, and the O-oppuigers have caused their mortgage to be foreclosed, and are about to sell the building upon a decree of foreclosure. The petition contains a further allegation in the following language: “That said building was built by said Eloyd on the lots in question, under a lease for a term of years, and plaintiffs’ judgment was a lien on said leasehold and building, prior to the execution of mortgage under which said Goppingers claim, and their interest is inferior and subject to the lien and claim of plaintiff.” The defendants demurred to the petition on the ground that it shows that the building was personal property when the judgment of plaintiffs was rendered, and continues to be property of that character. The demurrer was sustained. Of this ruling plaintiffs now complain.

II. Counsel have directed their attention in argument to the questions whether a building erected upon leasehold land is personal property, and whether the building involved in the case became a part of 'the leasehold property, and was held as such by the tenant. It would appear that a building upon leasehold property, with the right of the tenant to remove it at the end of the term, is, with the interest of the tenant in the land, subject to the lien of a judgment rendered against the tenant, which is paramount to subsequent conveyances by the tenant. First Nat. Bank of Davenport v. Bennett, 40 Iowa, 537. And it may be that buildings erected for the purpose of trade, subject to removal by the tenant, are to be regarded as personal property, and do not become a part of the leased premises. See Walton v. Wray, 54 Iowa, 531. But it Cannot be doubted that a building erected by the -tenant, which cannot be moved by him, becomes attached to the leased premises, and is subject to the same rules, as to liens and conveyances, which apply to the estate and interest of the tenant in the land. That a judgment against the tenant would be a lien upon his interest and estate in the land is settled by First Nat. Bank Davenport v. Bennett, supra. In this case the petition does not show whether the building was erected for the purpose of trade and could have been removed by the tenant, or whether it could not have been removed. Nothing is alleged as to the rights of the parties in this regard.

2. pleading iCawfUuo°ob°-£ jectimi. re III. But the petition does allege that the judgment was a lien uj»on the building. This allegation is not objected to as being of a conclusion of law, nor was plaintiff required» to state more specifically his title to and interest in the building, and the facts upon which he bases his claim for a lien thereon. While the petition in this respect may be faulty, yet, until complained of upon •this ground, it must be regarded as alleging the existence of the lien, and there is nothing contained in it which shows the contrai’y. In our opinion it shows prima facie plaintiff’s right to enforce a lien upon the building.

We reach the conclusion that the district court ought to have overruled. the demurrer.

Neversed.