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ERTIORARI to the Court of Civil Ap-, wards, 87 Tenn. 510, 3 L.R.A. 654, 11

peals to review a judgment affirming a S. W. 316. judgment of the Circuit Court in plaintiff's Mr. Robert L. Sadler, for defendant in favor in a suit to enforce a mechanics' lien certiorari: on an automobile for the amount of a re- Akers, the conditional vendee, was the pair bill. Reversed.

owner of the automobile within the meaning The facts are stated in the opinion. of the statute providing that a mechanic has

Messrs. R. B. C. Howell and Chester a lien on an automobile for work done K. Hart, for plaintiff in certiorari: or repairs furnished by contract with the

The title of a vendor under a conditional owner or his agent. sale contract is superior to a mechanics' Marshall v. Penington, 8 Yerg. 424; Allien under chapter 150 of the Acts of 1909, ley v. Lanier, 1 Coldw. 542; 29 Cye. 1550; when work and repairs are done on and Keith v. Maguire, 170 Mass. 210, 48 N. E. put on an automobile by a mechanic at 1090; State use of Ray County v. St. the request of a conditional vendee of said Joseph, St. L. & S. F. R. Co. 46 Mo. App. automobile without the knowledge of the 466; Nance v. Piana Co. 128 Tenn. 1, 155 conditional vendor, and before the maturity S. W. 1172, Ann. Cas. 19140, 834. of the payment for said car by the conditional vendee.

Williams, J., delivered the opinion of McCombs v. Guild, 9 Lea, 81; Houston the court: v. Dyche, Meigs, 75, 33 Am. Dec. 130; Shaw sold an automobile to one Akers, Price v. Jones, 3 Head, 84; McGhee v. Ed. I the purchase price being represented in two ing food or care to animals, see note to Na-, the vendor knew that the repairs were being tional Bank v. Jones, 12 L.R.A.(N.S.) 310. made on the property, and that the vendee

As to the improvement of personal prop- was insolvent. Baughman Automobile Co. erty at the request of a bailee as creating v. Emanuel, 137 Ga. 354, 38 L.R.A. (N.S.) liability against the bailor or the property, 97, 73 S. E. 511. see note to Baughman Automobile Co. v. And a conditional vendor who merely Emanuel, 38 L.R.A.(N.S.) 97.

knew that improvements were being made The right to a lien for repairs or improve on an automobile which he had sold under ments made on personal property, or for a contract whereby he retained title to the other services furnished in connection there property does not, by taking the machine with, pursuant to a contract with a pur- from the conditional vendee, after default, chaser thereof under a contract of condi- and when the repairer is seeking to subject tional sale whereby the title to the property it to a lien for the labor and material furis reserved in the vendor, while the vendee nished by him, create any liability which has possession, would seem to depend upon will subject his property to the lien, as by the lien claimant's knowledge or notice, ac- an acceptance of the improvements, where tual or constructive, at the time of making the improvements are of such a nature that the repairs or improvements, or furnishing he has no choice but to accept them; such the other services, as to the title to the acceptance not being voluntary. Ibid. property; upon the terms of the statute It would seem, however, although no decicreating the lien, in case it is not merely a sion upon this point has been found, that common-law lien; and upon the terms of one claiming merely a common-law lien for the contract of conditional sale, as implying services to personal property, depending authority in the vendee to obtain repairs or upon the continued possession of the propnot.

erty, should be entitled to such lien, al. Thus, one who, with knowledge, actual or though the services were performed at the constructive, of the vendor's title, makes re- request of a conditional vendee in possespairs upon personal property at the request sion without title, where he had, at the of the vendee in possession under a contract time of the services, no knowledge or notice, of purchase, the terms of which are unper- either actual or constructive, as given by iormed, can have no lien upon the property, statutory filing or recording of the conas against the vendor, for the repairs, un- tract, of the vendor's title to the property. less the vendee was authorized by the vendor But, as held in Shaw v. WEBB, although to impose such a lien. Small v. Robinson, a mechanic making repairs at the request 69 Me. 425, 31 Am. Rep. 299.

of a conditional vendee in possession had And one who, knowing at the time that no notice of the vendor's title, he is not the title to the property was in another entitled, as against the vendor, to a lien person, and that the one requesting the depending upon a statute providing therefor repairs was insolvent, has performed labor in case of repairs at the request of the ownand furnished material to repair an auto- er or his agents. mobile at the instance of the vendee thereof On the other hand, where a contract of under a duly recorded contract of condi- conditional sale contemplates repairs to the tional sale whereby the vendor retains title property sold, while it is in the possession to the property, has no lien on the prop- of the conditional vendee, and before pay. erty, as against the vendor, for the labor ment of the purchase price, and the terms performed and material furnished, although of the contract are such as expressly or imany vehicle

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notes, each of which contained a stipula-, improvements made or fixtures or machintion retaining title to the machine to secure ery furnished at the request of the owner payment. The machine passed at once into or his agent in favor of the mechanic, conthe possession of the vendee. Some time tractor, founder, or machinist who underthereafter it became necessary to have some takes the work,” etc. repairs made on it, and the automobile Judgment was rendered in favor of the was taken to Webb, a mechanic, about the mechanic by the circuit judge, who tried date of the maturity of the first note. After the case without the intervention of a the repairs were placed the machine was jury. On appeal that judgment was afturned back by the mechanic to the condi- firmed by the court of civil appeals; and tional vendee, Akers. On default being we are, by petition for certiorari, asked to made in the payment of the first maturing review' the judgment of the court last note, Shaw, by writ of replevin, repossessed named. himself of the machine. Suit was thereupon The mechanic had no actual notice of brought by Webb, the mechanic, against the retention of title; and the conditional Shaw, the vendor, to enforce a claimed vendor did not know that the machine was mechanics' lien on the automobile for the placed with the mechanic to be repaired. amount of the repair bill so created. It is to be noted that we are not dealing

This action was predicated upon a recent with a claim by Webb to the artisan’s comstatute (Acts 1909, chap. 150) which pro- mon-law lien which depends for validity, as vides : “That there shall be a lien upon against third parties, upon the retention of

for any repairs or possession on the part of the artisan. Here pliedly to authorize the vendee to have re-, sion of a chattel, under an agreement for pairs made by a third person while title to the purchase thereof, whether the title there. the property remains in the vendor, one to be in him or his vendor, shall, for the making repairs under a contract with the purposes of this act, be deemed the owner purchaser may have a lien therefor, even as thereof, and the lien of a person expending against the vendor. Thus, a coach builder material, labor, or skill thereon shall be who has repaired a dogcart under a con- superior to and preferred to the rights of tract with the hirer thereof under a hire- the person holding the title thereto, or any purchase agreement whereby the hirer was lien thereon antedating the time of expendito pay for the cart by monthly instalments ture of the labor, skill, or material therehas a lien for the cost of the repairs against on by a lien claimant, to the extent that the lessor in the hire-purchase agreement, such expenditure has enhanced the value of where that agreement provided that the such chattel,”—have been held not to be hirer was “to keep and preserve the said unconstitutional. Crosier v. Cudihee, dogcart from injury,” thus contemplating Wash, —, 147 Pac. 1146. that repairs should be made, and implying that the hirer should have reasonable repairs

Innkeeper's lien. made by a coach builder if necessary. Keene v. Thomas [1905] 1 K. B. 136, 74 Under a statute providing that the keeper L. J. K. B. N. S. 21, 53 Week. Rep. 336, 92 of a boarding house has a lien upon, while L. T. N. S. 19, 21 Times L. R. 2.

in possession, and may detain, property And under a statute declaring the right brought upon his premises by a boarder, and lien which a mechanic has at common for the proper charges due from him, unless law on all personal property in his posses- the boarding-house keeper had notice that sion, for repairs, and providing a method such property was not, when brought upon for the enforcement thereof, one who has the premises, the property of the boarder,made necessary repairs on an automobile a boarding-house keeper who received as intrusted to him for that purpose by a con

boarders a husband, wife, and child, has a ditional vendee in possession, who had been lien, for board furnished to them, upon a using the automobile for a long period of piano which they brought with them to time, with the knowledge and consent of the the boarding house, without notice to the conditional vendor, who also had knowl. keeper that it was not their property, aledge that the vendee, in the course of his though it had been purchased by the wife use of the property, was having it repaired, under a conditional-sale contract reserving and made no objection thereto,-has a para- title to the vendor, which contract was not mount and superior lien to that of the filed, or a duplicate furnished to the purvendor of the property for the payment for chaser, as required by statute, to render the labor performed and materials furnished it valid as against a pledgee in good faith. in making the repairs. Broom v. Polk, Leonard v. Harris, 147 App. Div. 458, 131 post, 1146.

N. Y. Supp. 909, affirmed without opinion And statutes providing that every per- in 211 N. Y. 511, 105 N. E. 1089. son who has expended labor, skill, or ma- As to the lien of an innkeeper on propterial on any chattel at the request of its erty of a third per on, including the vendor owner shall have a lien upon the chattel for in a conditional sale, in possession of a the price or value of such expenditure, etc., guest, see Horace Waters & Co. v. Gerard, and that "every person who is in posses. | 24 L.R.A.(N.S.) 958, and note. A. C. W.

Webb had parted with possession, after the mortgage was broken and the mortgage repairs were made on the automobile, to debt had become due. Akers, the conditional vendee.

In Hammond v. Danielson, 126 Mass. 294, However, the few cases that pass upon the the subject matter was a hack let for hire right of an artisan in possession and claim- which had been mortgaged and described in ing such common-law lien as against a the mortgage as "now in use” in a certain conditional vendor of the personalty re- livery stable. The mortgagor was left in paired by analogy shed much light upon the possession agreeably to the terms of the point we have to decide.

mortgage; that is, the manifest intention of In Baughman Automobile Co. v. Emanuel, tinue to be driven for hire and kept in a

the parties was that the hack should con137 Ga. 354, 38 L.R.A. (N.S.) 97, 73 S. E.

proper state of repair for that purpose. 511, we understand from the report of the For repairs made under contract with the case that such common-law lien was relied mortgagor the artisan’s lien was awarded upon by a mechanic for repairs put by him

priority. on an automobile, under contract with a In Ruppert v. Zang, 73 N. J. L. 216, 62 conditional vendee in possession, and the Atl. 998, in an opinion by Pitney, J., it was court held that the artisan’s lien was sub- held that a common-law lien had priority ordinate to the right of the vendor, stand- over a mortgage when claimed for repairs ing on his title retained. In that case it upon a wagon by an artificer, made without appeared that the lien claimant had knowl- the knowledge of the mortgagee. edge of the rights of the conditional vendor However, in the cases of Watts v. Sweeney at the time the work on the machine was and Ruppert v. Zang, supra, the distinction done.

between the effect of such a common-law Small v. Robinson, 69 Me. 425, 31 Am. lien and a statutory lien of a mechanic Rep. 299, involved a contest between the was noted—whether properly so is a deconditional seller of a hack, which had been batable point. Judge Pitney, in the lastin the possession of the vendee for about named case, refers to Sullivan v. Clifton, two years, and a mechanic urging the com- 55 N. J. L. 324, 20 L.R.A. 719, 39 Am. St. mon-law lien of an artisan. A like ruling Rep. 652, 26 Atl. 964, as a case pointing was made in favor of the conditional seller. out the ground of such a distinction. It

If we go, for further analogy, to the law was said in Sullivan v. Clifton: “It is one governing chattel mortgages, we find the of the characteristics of common-law liens rulings to be at least apparently variant. which arise, upon considerations of justice The artisan's common-law lien has been and policy, by operation of law, as distinheld to be subordinate to the rights of a guished from liens created by contract or mortgagee of such a chattel under a reg. statute, that the former, as a general rule, istered instrument; and the fact that the attach to the property itself without any mortgagor is permitted to remain in posses- reference to ownership, and override all sion, in the absence of a statute providing other rights in the property, while the latotherwise, affords no implied authority on ter are subordinate to all prior existing his part to subject the chattel to such a rights therein.” lien in priority. A lien attaches, it is See also D'Gette v. Sheldon, 27 Neb. 829, held, but only to the mortgagor's interest. 44 N. W. 30; 25 Cyc. 678. Denison v. Shuler, 47 Mich. 598, 41 Am. We think it manifest that if the New Rep. 734, 11 N. W. 402, and cases cited; Jersey court had been dealing with a claim Bissell v. Pearce, 28 N. Y. 252; Hampton v. that could only have had basis on a statute, Seible, 58 Mo. App. 181, overruling, it would like the one in the pending case, it would seem; Kirtley v. Morris, 43 Mo. App. 144; have held the same inferior to the mortgage 7 Cyc. 39.

lien. Other cases uphold the priority of the ar

Coming now to precedents which contrast tisan's lien, over the mortgagee's title, in the rights of statutory lien claimants with instances where there may fairly be implied those of mortgagees under previously regis

tered chattel mortgages : a consent, on the part of the mortgagee, that the mortgagor, while in the use of the L.R.A. 654, 11 S. W. 316, it was ruled that

In McGhee v. Edwards, 87 Tenn. 506, 3 chattel, may have it repaired. Thus, in the statutory lien of a livery stable keeper Watts v. Sweeney, 127 Ind. 116, 22 Am. St.

on a horse must yield to the lien of such Rep. 615, 26 N. E. 680, it was held that

a mortgagee, where the lien claim arises a machinist was entitled to prevail on such under contract with the mortgagor in posa lien as against the claim of the mort- session before the maturity of the mortgagee of a locomotive, the mortgagor being gage. In accord are many cases relating to a public or common carrier, and the re- the statutory lien for pasturage of live pairs being made after the condition of the stock. National Bank v. Jones, 12 L.R.A.

case.

(N.S.) 310, and note (18 Okla. 555, 91 of a lien. McDonald Automobile Co. v. Pac. 191, 11 Ann. Cas. 1041). The same Bicknell, 129 Tenn. 493, 167 S. W. 108, rule applies to other chattels. 25 Cyc. and cases cited. Such title, when retained 678.

in a written contract, unregistered, is supeThus, in the recent case of Adler v. God- rior to any right acquired by a purchaser frey, 153 Wis. 186, 140 N. W. 1115, it was for value and without notice. Price v. held that the fact that the mortgagor Jones, 3 Head, 84; McCombs v. Gould, 9 is permitted to remain in possession Lea, 81. of a mortgaged automobile affords him It is not easy to conceive, then, how the no implied authority to create a lien title retained or lien that is prior in time thereon for storage (a lien by statute in may be supplanted by a junior lien, created that state) superior to the rights of the by statute in behalf of a mechanic, withmortgagee, and that the rights are not out the concurrence of the holder of the changed by the fact that the mortgagee precedent lien; and it is not contended that knew that the mortgagor was keeping the any such express assent or concurrence is machine in a public garage.

shown in the pending case. The claim advanced in this case in be- There are cases which hold that such conhalf of Webb as lienor is based upon a sent may be implied from the nature of statute which awards a lien, notwithstand the transaction or from the circumstances. ing the mechanic may have parted with In Hammond v. Danielson, and Watts v. possession, upon any vehicle "for any re- Sweeney, supra, the chattels were in use by pairs or improvements made .. at public carriers, and the courts found room the request of the owner' or his agent,” to imply such consent. In Drummond Carbut saving the rights of purchasers without riage Co. v. Mills, 54 Neb. 417, 40 L.R.A. notice under good-faith transfers.

761, 69 Am. St. Rep. 719, 74 N. W. 966, The question for solution, then, is: Is involving a buggy, the court construed the this statutory lien superior to the rights of language of the mortgage to have had the Shaw, the conditional vendor ?

making of repairs in contemplation. We have not been cited, nor have we been Doubtless a court, in order to sustain a able to find, where the point in the present. claim to lien, would not hesitate to seize ed phase has been ruled in any reported upon any provision in a contract retaining

We are of opinion, however, that on title or in a mortgage which may be conthe above and other analogies of the law strued to look to the making of repairs or the lien claimant must fail in the pending improvements at the instance of the vendee

or mortgagor in possession. Ragon v. HowThe Michigan court ruled in Presque Isle, ard, 97 Tenn. 334, 37 S. W. 136; DrumSash & Door Co. v. Reichel, 179 Mich. 466, mond Carriage Co. v. Mills, supra. 146 N. W. 231, that the title of a condition- The English courts, it appears, take this al seller of a saw has priority over a statu- view of the rights of the parties. In the tory lien of a laborer for services in install recent case of Keene v. Thomas (1905) 1 ing the saw in a mill under contract with K. B. 136, where by a hire-purchase agreethe vendee.

ment plaintiff had let a dogcart to one RobWhere real estate is the subject-matter of ertson, who, in the course of time, sent the transfer and the vendor retains the legal cart to be repaired to defendant, a couch title, it is not within the power of the builder, Lord Chief Justice Alverstone said: vendee, under a bond for title or under a "This case raises an important point, and contract to convey (nothing else appearing), one on which there is not much direct auto fix a mechanics' lien upon the property thority. I am rather surprised, indeed, which will be superior to the title so re that there is not more, but probably tained. Gillespie v. Bradford, 7 Yerg. 168, hire-purchase agreements

not 27 Am. Dec. 494; Rhea v. Allison, 3 Head, common formerly as they are

I 176; Belnap v. Condon, 23 L.R.A. (N.S.) | think that the county judge has come 601, note.

to a right conclusion.

The real quesThe prior rights of a mortgagee of realty tion that we have to decide is that stated under a registered mortgage cannot be so by Alderson, B., in Buxton v. Baughan affected by the mortgagor in possession (1834) 6 Car. & P. 674, 40 Revised Rep. (New Memphis Gaslight Co. Cases, 105 842, namely, whether the man who made the Tenn. 268, 302, 80 Am. St. Rep. 880, 60 bargain with the repairer had authority S. W. 206), even where the mortgagee from the plaintiff to make such a bargain. merely knew of the repairs or improvements There is no doubt that Robertson made the (Pride v. Viles, 3 Sneed, 125).

bargain that the trap should be repaired In this state, the retention by a vendor by the defendant. The hire-purchase agreeof the title to personal property to secure ment expressly says that Robertson is 'to the purchase money partakes of the nature' keep and preserve the said dogcart from

case.

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injury (damage by fire included).'

So to speak, by way of recompense for the The clause does give Robertson authority to enforced obligation, the lien is held to attach take care of the cart and to keep it in prop- to the property regardless of the true owner order, and that, in my opinion, implies ership. an authority on the plaintiff's behalf to The Court of Civil Appeals in its judg. get the trap repaired if it needed repair. ment awarded priority to the mechanic on

his claim to a paramount lien. Reversed, "The case of Buxton v. Baughan, supra, with judgment "here in accord with this is not authority in favor of the plaintiff. opinion. The facts there were not the same. In that case, Alderson, B., said: “If you trust your goods into a man's possession, and he

MISSISSIPPI SUPREME COURT. makes a bargain about them without your authority, you are not bound by that bar.

J. A. BROOM & SON, Appts, gain, and may reclaim the goods. A man has no right to keep my property,

F. R. POLK. and charge for the standing of it, unless there was a previous bargain between him $. S. DALE & SONS, Interveners. and me, or between him and some agent authorized by me;' and he held there on

(- Miss. 5, 67 So. 659.) the facts in that case that there was no

Mechanics' lien such authority."

on automobile sold

on condition, We are of opinion, therefore, that some

A vendor of an automobile, who takes thing more is required than the fact that a

notes for unpaid purchase money, retaining vehicle, which may need repair in order to title to the machine as security, by placing continued personal use by the vendee, is the machine in the purchaser's possession placed in the possession of the conditional for use, impliedly authorizes the making of vendee. The vendor in such case should necessary repairs upon the machine, so that not be considered as consenting in advance the lien for such repairs takes precedence to the subordination to that which both of his lien, at least, if he knew without proparties patiently intended to make supe

test that the repairs were being made. rior—the title retained for the security of

(March 15, 1915.) the payment of the purchase money. The intent of the vendor to permit repairs PPEAL by petitioners from a judgment

of the Circuit Court for Jefferson Counto his interest should have been manifested ty in favor of interveners in an action in the note contract, since upon a transfer brought to recover a balance owing on an of the note the transferee is vested with account for repairs on an automobile in the rights of the conditional vendor. To possession of defendant, and for materials announce a doctrine such as is contended for used in such repairs. Reversed. by the mechanic in this case would be to The facts are stated in the opinion. deprive a note which contains a reservation Mr. J. C. Oakes for appellants. of title to personalty of a no inconsiderable Mr. J. E. Parker for appellees. element of marketability. The transferee of such paper should not, we believe, take Reed, J., delivered the opinion of the it subject to the risk of having his right court: embarrassed or lessened by such act of the Appellants filed a petition against F. R. vendee maker, when the note contains noth- Polk to recover a balance owing on an acing to put him on notice.

count for repairs on an automobile in his It should, perhaps, be noted, by way of possession and for materials used in such parenthesis, that a distinction is taken by repairs. Appellants alleged that the work the authorities between such a claim of a was done and the materials used for repairmechanic and the common-law lien of an ing and keeping in order the automobile, innkeeper on a chattel held in possession as and they prayed the court to establish a conditional vendee by a guest. To such a mechanics' lien thereon, and order a sale chattel brought upon his premises, the lien for the satisfaction of the indebtedness. attaches in favor of the innkeeper, provided he had no notice of the nature and extent Note. As to right to lien for repairs of the guest's title when the property was

or other services under contract with purbrought into the inn.

chaser under conditional sale, see note to In such case the

Shaw v. Webb, ante, 1141. common-law imposed upon the innkeeper

The question of priority of lien for servthe obligation to receive the guest and his ices on personal property over prior chattel baggage, and that liability is deemed suf mortgage is considered in the note to Reeves ficient to give rise to a coextensive lien.'& Co. v. Russell, post, 1149.

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