Merrit v. Fisher

19 Iowa 354

• Court: Supreme Court of Iowa
• Decided: January 5, 1865
• Status: Published

Opinion

Dillon, J.

Bordas» nu&chment. The statute (Rev., ch. 99), gives to the landlord “alien for his rent" upon designated personal property of the tenant. This lien is to be “effected,” that is enforced (Grant v. Whitwell, 9 Iowa, 152), “ by an action for the rent due, in which the landlord is entitled to a writ of attachment, upon filing an affidavit, that the action is commenced.to recover rent accrued within one year previous thereto, upon premises described in the affidavit.” Rev., § 2813. Ordinarily the goods of a debtor, in this State, can be attached, only when certain causes for an attachment exist, and a bond is filed for the use of the debtor, to secure to him all damages he may sustain bi’’ reason of the wrongful suing out of the ■attachment. Rev., ch. 124. But the statute, in analogy to the common law right of distress (which common law right the statute abrogates, or takes the .place of), has given to the landlord, for the recovery of rent, a special remedy. It entitles him to an attachment without assigning the ordinary causes of fraud, non-residency and the like, and without filing a bond for the use of the supposed debtor or tenant.

The lien and the remedy thus given to the landlord, are purely statutory. It is a species of “ class ” legislation in-favor of landlords, granting them rights not given to creditors generally. It follows that, in availing himself of this special and extraordinary remedy, the landlord must take it just as the statutes give it to him. If it is not broad enough, in any given case, to suit his purposes, the usual and ordinary remedies of the law in favor of creditors, are also available to him.

„ „ 2. —^ rent: aefinmon. It will be perceived, by examining this chapter (Rev., ch. 99, §§ 2302, 2308), that the claim of the landlord must be for rent. His lien is “for his rent ”— rent for « fciie demised premises.” § 2302. The action is “for the rent due” — for “rent accrued within one year previous, upon premises described in the affidavit.” It must not only be for. rent, but.this, language shows that it must be for the rent of real property.

Now rent is a certain profit, either in money, provisions, chattels, or labor issuing out of lands and tenements, in retribution or return for their use. Co. Litt., 144; followed 3 Kent Com., 460; Taylor, L. & T., § 369; Valentine v. Jackson, 9 Wend., 302; 3 Kent. Com., 483, n.

3. — attachment: damages, Applying these considerations to the petition in the present case, the court are of the opinión, that none of the claims or causes of action therein set out, are _ • i 1 *1 • «/v* , - for .rent, so as to entitle the. plamtms. to a landlord’s attachment, except the 7th or last one.

The other claims are for damages for failure to till land, and for breaches of covenants in parts of the agreement not connected with the demise of the land, for cows sold or converted, for the use of team, for the neglect to perform the cheese contract, &c., &c. These are not claims for rent within the meaning of the statute. They are ordinary causes of action for which the law has provided its ordinary remedies.

The last count,.averring as it does the failure to take; care of, and deliver the plaintiff the rent share of the oats,, is in our opinion a claim of such a nature, as would entitle the plaintiff to a landlord’s lien and attachment.

• Hence the court erred in sustaining the motion wholly. For this error the ruling appealed from is reversed.. If a disproportionate and unreasonable amount of property has been attached, and this is clearly made to appear, the excess can be discharged on motion made for that purpose in the District Courts. Courts have power over their writs to prevent them from being unjustly or oppressively used.

Reversed and remanded for further proceedings.

Reversed.