
    Martin v. Stearns et al.
    1. Landlord and Tenant: usase: surrender oe. To constitute the surrenderor a lease, ijjhich will relieve the lessee from future liability for rent, (he assent of tho lessor to such surrender is necessary. Facts considered which, were held not to show such assent.
    2. -: -: LIEN Off LANDLORD. ’Under section 2017 of the Code, a landlord has a lien upon all property of the tenant, not exempt from execution, used upon the leased premises, for the rent of the entire term of' tho lease, and such lien attaches to the property as soon as brought upon tho premises.
    
      Appeal from Gass District Cov/rt.
    
    Tuesday, October 28.
    Action for an injunction to restrain the defendants from selling a stock of goods. The plaintiff claims to have a landlord’s lien upon the goods. In October, 1877, the jfiaintiff leased a store-room to the defendant Stearns, for tho period of two years, at a monthly rental of '$55, payable monthly in advance. Stearns placed a stock of goods in the store-room, and proceeded to sell the same at retail, in the ordinary method of such trade, until February, 1778. Prior to that time he had purchased goods of the defendants Smith & Crittenden, and to secure them had given them a chattel mortgage upon the stock, the same being executed after the commencement of the lease. In February, 1878, Stearns’ circumstances became such that Smith & Crittenden, with the consent of Stearns, placed a clerk in the store for the purpose of securing the payment of their claim from the proceeds of the sales. In the meantime the stock became greatly reduced, and Stearns became insolvent. The plaintiff avers that the sales were being forced by unusual processes, and beyond the due course of retail trade. All rent, however, at this time had been paid monthly in advance, according to the terms of the lease; but the plaintiff became apprehensive that the stock would become exhausted in the payment of Smith & Crittenden, and that nothing would be left for the security of the rent that was yet to accrue. He accordingly, in the month of February, 1818, brought this action for an injunction to restrain the defendants from selling the goods, or any part thereof, until the rent for the entire term should be paid. A preliminary injunction was granted. The defendants Smith & Crittenden moved to dissolve, and at the same time offered to. give security for the plaintiff’s protection. The court ordered that the injunction be dissolved, upon Smith & Crittenden filing a bond in the sum of twelve hundred dollars, conditioned that they would return the goods if it should be adjudged that they were subject to a lien in favor of the plaintiff’, or that they would discharge the lien. The bond being filed,- the injunction was dissolved and the goods were removed by Smith & Crittenden, and subjected to the payment of their claim. Upon the removal of the goods, and before any rent was overdue or had accrued, Stearns vacated the store and so notified the plaintiff, and left the keys of the store with him. The plaintiff in the exercise of reasonable diligence leased the store after a few months at a reduced rent. The defendants answered, averring that the premises and lease were surrendered Avliile no rent was overdue or had accrued. Upon the hearing the court found that there had been a surrender as alleged, and dismissed the plaintiff’s petition. The plaintiff appeals.
    
      Chapman & Chapman and H. G. Curtis, for appellant.
    
      Sapp, Lyman & Ament and Temple & Phelps, for appellees.
   Rothrock, J.

I. A surrender, as the term is used in tlie law of landlord and tenant, is the yielding up of tlie estate to tlie landlord so tliat the lease-hold interest becomes extinct ky mutual agreement between the parties, Beall v. White, 4 Otto, 382 (389). The lease being terminated by agreement the lessee is of course discharged', except for rent already accrued. To constitute such- agreement it is not necessary that express words should be used to that effect. It is sufficient if the reasonable inference from the acts of the parties, and the circumstances under which they are performed, is that such was the understanding. Hill v. Robinson, 23 Mich., 24. But where acts are relied upon- as evincing the understanding, they should be such as are not easily referable to a different motive. Griffith v. Hodges, 1 C. & P.., 419. No express agreement was made in this case. The acts relied upon as evincing the agreement were tlie acceptance of the keys by the plaintiff, and the leasing of the property to another tenant. But the plaintiff insists that these acts are insufficient, because after the premises were vacated and the keys left with him he could not properly refuse to receive the keys, and take charge of the property and lease it to another person for the best rent which he could obtain, so as to diminish the damages which he would otherwise sustain. There is much lorce in this position. What the inference would be from the mere receipt of the keys and the leasing of the premises by the landlord to another person we need not determine. There is a circnmstauce in this case which we deem of controling importance. The plaintiff, at the time of the alleged surrender, had brought this action to secure the payment of the rent yet to accrue. He liad brought it in view of au apprehended abandonment of the premises, aud the fact that tlio rent contracted for in the lease was greater than the actual rental value, yet not a word was said about dismissing the action or discharging the lessee from the claim made in the action. In our opinion no discharge was.agreed upon and the defendant Stearns remained liable.

II. But the defendants Smith & Crittenden insist that, even if this be so, tlie plaintiff bad uo lien upon the goods in (piestion. Their position is that as the rent was made payable monthly in advance, and was kept so paid until the commencement of tiie action, the plaintiff had no claim for rent at that time, and consequently no lien for rent. The question presented involves a construction of section 2017 of the Code, which is in these words: “A landlord shall have a lien for his rent upon all crops grown upon the demised premises, and upon any other personal property qf the tenant which has been used on the premises during -the term, and not exempt from execution, for a period of one year after a year’s rent, or the rent of a shorter period claimed, falls due, but such liens shall not in any case continue more than six months after the expiration of the term.” The plaintiff insists that under this statute he acquired a lien for the rent for the entire term, and that the lien for the whole of such rent attached from the commencement of the lease upon .all property of the tenant then on the premises, and. upon all other property of the tenant afterwards brought upon the premises, commencing as soon as it was brought thereon. In support of this construction he relies upon Grant v. Whitwell, 9 Iowa, 153; Carpenter v. Gillespie, 10 Iowa, 592; and Garner v. Cutting, 33 Iowa, 547.

This position we believe to be correct. Counsel for appellees endeavor to distinguish the case at bar from those just cited, but' it seems to us they determine the very question under discussion. It is urged that in the cases cited the attempted fraudulent disposition of the property by the tenant was an important consideration. We do not so understand the opinions in those cases. In Grant v. Whitwell et al. it is distinctly held that the statute gives to the landlord a .security for his “ rent as such and beforehand, his rentage as it may fall due, and not merely for a debt now due.” This construction of the statute was followed in Carpenter v. Gillespie; and in Garner v. Cutting the court, upon a full discussion of the previous cases, adhered to the rule that the lien exists not only for rent due, but for what may become due «during the term. Now the disposition of the property by the tenant, as shown in this ease, while it may not have been with any'actual fraudulent intent upon the part of tbe tenant, yet it destroyed tbe security which ’the law gives the landlord for his rent, and in this sense defrauded him of his statutory lien. In short, if the right to the lien for rent not yet due be conceded, it follows that the landlord should by proper proceedings be enabled to prevent such a disposition of the property as would make the security worthless. We are united in the opinion that the case at bar cannot be distinguished from the cases cited.

III. It is insisted that the cases of Grant v. Whitwell, Carpenter v. Gillespie, and Garner v. Gutting, should be overruled because tbe construction of tlie statute adopted in those cases is erroneous and unsound.

It is not necessary to enter upon a discussion of that question here. It is enough to say that a majority of the court are of the opinion that no sufficient reason exists, for changing a rale which has been so long established. The section of the statute in question is a literal copy of section 2302 of the Revision of 1860, and of section 1270 of the Code of 1851. The case of Grant v. Whitwell et al. was decided in 1859, under the Code of 1851. The case of Garner v. Cutting was determined in 1871, under the Revision of 1860. Notwithstanding the construction placed upon the statute by these cases, the general assembly liave twice re-enacted. the statute without change or amendment. Under these circumstances, and in view of the fact that leases now in existence, including the one in controversy, have presumably been made in reliance upon the law as it now is, we do not think a change of the rule should be a question to be entertained by this court.

Ear tbe error in bolding that there was a surrender of the lease, the decree of the court below must be

Reversed. ,

Mr. Justice Day and Mr. Justice Adams dissent, upon tbe grounds expressed in the dissenting opinion of Mr. Justice Day in Garner v. Gutting, above cited.  