Pitkin & Brooks v. Fletcher , 47 Iowa 53 ( 1877 )

Day, Oh. J.

I. It is claimed that the lease of appellee is void as against appellants, not having been recorded. In support of this position appellants cite and rely upon section 1922 of the Code. There are two reasons why this section can have no application to this case: 1. This section applies only to personal property. 2. It applies to cases wherein the transfer of title or ownership is made to depend upon a condition.

l. mobtgage: corded. II. It is contended by appellants that the lease, in so far as it creates a specific mortgage lien, is void as against the creditors of the lessee, because not recorded as a chattel mortgage in conformity with the provisions of section 1923 of the Code. It may be conceded that, in so far as this lease constitutes a mortgage, it is not valid as against the plaintiffs inasmuch as it was not recorded when the mortgage to plaintiffs was executed.

2 _. land_ lord’s lien. III. It is'claimed that appellee waived his landlord’s lien, if he had any, and divested himself of the right to rely upon it, by taking the distinct chattel mortgage security upon the property of the tenant. In other words, the position of appellants is this: the chattel mortgage is void, as to plaintiffs, not having been recorded, and by the taking of this void chattel mortgage appellee has lost his landlord’s lien. This position certainly cannot be sound. The authorities cited by appellants do not sustain the position for which they contend. None of them holds that a lien is waived or lost by taking security not enforceable against third parties. Some of them hold that the lien will be regarded as waived whenever from the circumstances the court can infer' that the lien was not relied upon. See Cowl et al. v. Varnum, 37 Ill., 185. In this case the mere fact that appellee did not record his mortgage, and put it in a condition to create an available lien, is. very strong proof that he relied upon, and did not intend to waive,-his landlord’s lien. The judgment is

Affirmed.