Bacon v. Carr

¶1*1941 2*193W. J. Carr purchased of Estey & Camp a piano, and gave them a mortgage thereon for the purchase price. The piano was afterwards kept and used upon premises leased by Carr, of the defendant Bradshaw, and situated in Dickinson county, this state. On the twenty-*194third of August, 1898, Carr abandoned the leased premises and declared his intention to remove to Omaha, Neb., where he did thereafter locate. Appellant concedes that the piano, when taken upon the leased premises, and up to the time of their abandonment by Carr, was exempt to him, but contends that after such abandonment it ceased to be exempt and was subject to landlord’s attachment for unpaid rent, under the statute. With this view we. cannot concur. The mortgage was for the purchase price of property which became' exempt the moment it was delivered to the purchaser. It was not taken on to the leased premises until some time after the lease was executed, and after the tenant had gone into possession. On the day that the premises were abandoned, Mr. Carr wrote Estey & Camp that he was unable to pay for the instrument, and offered to assist them in making disposition thereof; and it may fairly be said that by this act he surrendered all claim thereto, and left it on the premises for Estey & Camp. If this be true, we think the lien of the landlord never attached to it. Up to the very moment he left, the property was exempt, and no lien could attach. Estey & Camp were in Chicago, and he could not personally surrender to them possession of the piano, or do more than tie did by his letter. After abandonment of the. premises, he certainly did not keep or use it thereon. The landlord’s lien is created only by virtue of the tenancy. The tenancy ceasing at the time it is claimed the exemption was removed, the lien of the landlord could not be created, even if it were proved that Carr was about to leave the state* The judgment of the district court is affirmed.