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Appellees interpleaded, and alleged that "Wherefore the question submitted to the they had sold the automobile to Mr. Polk; court for decision is as to whose lien takes that potes were given to evidence deferred priority; and both parties pray the court payments on the purchase price, in which for an appropriate judgment defining their notes title in the property was retained rights in the premises." in appellees. They prayed that the auto- In this state, by statute ($ 3075 of the mobile be sold, and that the balance owing Code of 1906), a mechanic is given the them as shown by the notes be paid first right to retain in his possession any artiout of the proceeds of sale and before pay- cle which he repairs until the price of his ment of appellants' claim for repairs. labor and material furnished in making

The case was tried in the circuit court such repairs shall be paid. The statute before the judge, jury being waived, upon states that any article repaired shall be an agreed statement of facts. The court i liable for the price of the labor and magave judgment in favor of appellees, decid- terial employed in repairing the same. Proing that their claim upon the automobile, vision is made in the statute for the enbased on the title retained in the notes, was forcement of the mechanic's right, including superior to that of appellants for labor and a special order of sale of the property rematerial used in making repairs thereon. tained in his possession for the payment

We quote the agreed statement of facts as of the amount due. follows:

A mechanic, at common law, has a lien "(1That on the 20th day of June, 1911, on all personal property for repairs. PerS. S. Dale & Sons sold the automobile in sons have by common law the right to recontroversy to F. R. Polk for the agreed tain goods on which they have bestowed price of $775, and retained title in them- labor, until the reasonable charges thereselves to the aforesaid automobile as se for are paid. 2 Kent, Com. 635. “In the curity for the purchase price thereof; that absence of specific agreement, if a party there is now due and unpaid on account of has bestowed labor and skill on a chattel said purchase price the sum of $465, with bailed to him for such purpose, and thereby interest thereon at 10 per cent per annum improved it, he has by general law a lien from the 20th day of June, 1911; that J. on it for the reasonable value of his labor, A. Broom & Sons have known at all times or the right to retain it until paid for such that the said automobile had not been fully skill and labor.” Drummond Carriage Co. paid for by F. R. Polk as aforesaid; that v. Mills, 54 Neb. 417, 40 L.R.A. 761, 69 Am. said J. A. Broom & Sons do not question St. Rep. 719, 74 N. W. 966; Grinnell v. or deny the amount that S. S. Dale & Sons Cook, 3 Hill, 491, 38 Am. Dec. 663. It was say that F. R. Polk is due them on account said by Mr. Kent in his Commentaries that of this automobile, and the said automobile "this right rests on principles of natural is of less value than the unpaid part of the equity and commercial necessity.” purchase price for which title is retained; The statute ($ 3075) does not create a that S. S. Dale & Sons admit that the new right or lien for the mechanic's beneamount of $95.25 claimed by J. A. Broom fit, but only declares the right and lien & Sons is just and correct against F. R. which he has at common law, and then proPolk for material furnished and repairs vides a method for the enforcement thereof. made to the automobile involved in this In this case the automobile was intrusted litigation; that S. S. Dale & Sons have been by the party who had the lawful possession aware and were fully advised during such of it to the appellants to be repaired. By time as such repairs were being made and virtue of the labor done by appellants and material furnished as aforesaid were being the material used by them in making the made and furnished as aforesaid ; that S. repairs, they had the right under the comS. Dale & Sons at no time ever objected to

mon law, as well as under the statute, to repairs being made or material furnished retain possession thereof until they were for such repairs to the said automobile.

“Whereas, it is agreed by and between the paid their charges, and by the statute were attorneys for both parties that S. S. Dale given the right to subject the article by & Sons retained a title in themselves for proper proceedings and through sale to the security for the purchase money of said payment of the amount owing. automobile, and that they therefore have an

Appellees, by retaining title to the notes equitable lien upon the said automobile for given to evidence the purchase price, were said purchase money to the amount now placed in the position of a person holding unpaid, and that the said J. A. Broom & a lien or mortgage on the property. Mr. Sons have a mechanics' lien upon the said Polk occupied the position of mortgagor in automobile for the amount due them as possession. It is the general rule that the aforesaid for repairs made to and material employment of the mechanic making the refurnished for the said automobile:

pairs should be by the owner of the property to be affected by the lien, or by his of needed repairs, constituted the agent of consent, express or implied.

the mortgagee in procuring such repairs, It has been held that the common-law and in such case equity gives the mechanic lien of a mechanic for repairs under special a lien for his services and materials. The circumstances may be superior to prior ex- repairs add to the value of the property, isting liens on property. 3 R. C. L. § 56, and they are for the benefit of the mort. p. 134;

Drummond Carriage Co. v. Mills, gagee, as well as the mortgagor. Where supra. We quote as follows from 3 R. C. L. property is to be retained and used by the $ 56, p. 134: “Thus, where property which mortgagor for a long period of time, it will is liable to need repairs is to be retained be presumed to have been the intention of and used by a mortgagor for a long period the parties to the mortgage, where it is of time, it will be presumed to have been property liable to such repairs, that it is the intention of the parties to the mortgage to be kept in repair; and when the propthat it is to be kept in repair; and when erty is machinery, or property of a characthe property is machinery, or is of such a ter which renders it necessary to intrust character that it must be intrusted to a it to a mechanic or machinist to make such mechanic or machinist to make such repairs, repairs, the mortgagor in possession will be the mortgagor in possession will be con constituted the agent of the mortgagee to stituted the agent of the mortgagee to pro- procure the repairs to be made; and as such cure the repairs to be made; and as such necessary repairs are for the betterment of necessary repairs are for the betterment of the property, and add to its value to the the property, and increase its value to the gain of the mortgagee, the common-law lien gain of the mortgagee, the common-law lien in favor of the mechanic for the value of in favor of the bailee for the value of the the repairs is paramount and superior to repairs is paramount and superior to the the lien of the mortgagee. The mortgagee lien of the mortgagee. The mortgagee is is presumed, in such case, to have conpresumed, in such case, to have contracted tracted with a knowledge of the law giving with a knowledge of the law giving to a to a mechanic a lien." mechanic a lien."

In the leading case on this subject (WilIn the case of Drummond Carriage Co. v. liams v. Allsup, 10 C. B. N. S. 417) a shipMills, supra, a physician had executed a wright was permitted to detain a vessel for chattel mortgage on a buggy used by him his charges for repairs as against a mortin his practice. He had repairs made on gagee under prior mortgage. These the vehicle in the shop of the carriage com- repairs were made by the mortgagor's direcpany.

The party holding the mortgage tions without the knowledge of the mortknew that the physician used the buggy, gagee. Opinions were delivered in the case and knew that he had left it in the shop by several judges. We quote as follows for repairs. The court held that the car- from that delivered by Byles, J.: "As it riage company making the repairs was en is obvious that every ship will, from time titled to its lien superior to the lien of the to time, require repairs, it seems but reachattel mortgage. The court said that in sonable, under circumstances like these, to cases where the mortgagor can be said to infer that the mortgagor had authority have express or implied authority from the from the mortgagees to cause such repairs mortgagee to procure repairs to be made on as should become necessary to be done, upon the mortgaged property, that the lien of the usual and ordinary terms. Now, what the mechanic should be superior to the are the usual and ordinary terms? Why, chattel mortgage.

that the person by whom the repairs are In the case of Watts v. Sweeney, 127 Ind. ordered should alone be liable personally, 116, 22 Am. St. Rep. 615, 26 N. E. 680, it but that the shipwright should have a lien was held that a mechanic who made repairs upon the ship for the work and labor he has

a locomotive and tender had a lien expended on her. Nor are the mortgagees which took precedence of that of the mort- at all prejudicially affected thereby. They gagee, where the property was permitted to have a property augmented in value by the remain in the possession and use of the

amount of the repairs." mortgagor, and through such use it became necessary to repair it. We quote from the

In the case at bar the automobile was in opinion in this case as follows: “When the the possession of Mr. Polk, and being used mortgagee intrusts machinery of the char. by him with the knowledge and consent of acter in controversy to the custody of the appellees, which use continued for a long mortgagor for a long period of time, to be period of time. Appellees not only knew used by the mortgagor in operating the rail and consented to the general use of the road, it will be presumed against the mort-automobile by Mr. Polk, but also had knowlgagee that all necessary repairs were con- edge that, in the course of his use of the templated, and the mortgagor was, case property, he was having it repaired. Ap

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pellees, with this knowledge, made no ob- , asking affirmative relief for foreclosure of jection to the repairs being made.

their artisan’s lien for material, repairs, From the agreed facts in the case we un

and labor performed upon the mortgaged derstand that the repairs were such as were personal property under a contract with necessary to preserve the automobile and The mortgage was taken in 1906, has been

the owner of the mortgaged personalty. keep it in proper condition for its use. Re

renewed, and is a valid mortgage upon the pair means to restore, renovate, or mend an

property. Boyle Brothers performed the article; to keep it in good or sound con- work in 1911, immediately filing a claim for dition. Repairs, in the ordinary sense, are artisan’s lien under chapter 168, Laws 1907, made to prevent deterioration in an article, and also retained possession of the property and to keep it up in its value and preserve under a claim of lien by virtue of such it for the use intended. It was clearly the possession under $ 6295, Rev. Codes 1905, intention of the parties that Mr. Polk, the Comp: Laws 1913, § 6877, in case chapter

168, Laws of 1907, be unconstitutional, and mortgagor, should continue in the ordinary claim their lien under $ 6295 to have prioruse of the automobile. While being so used ity over a lien by mortgage of record. Held, it was necessary to keep it in a sufficient that an artisan's lien is a common-law lien, state of repair. This would be not only to and where possession was retained, as here, the benefit of the user, Mr. Polk, but by the statute being but declaratory thereof, preserving the value of the property, was and such a lien at common law having also for the benefit of appellees as mort. priority over mortgage liens, an artisan's

lien, under § 6295, Rev. Codes 1905, Comp. gagees. From the sole possession, control, and use tained, has priority over existing mortgage

Laws 1913, $ 6877, where possession is reof the automobile by Mr. Polk by agreement liens, and this independent of the provisions with appellees, from the manner of its use of chapter 168, Laws 1907, in express terms and the necessity of repairing it to preserve granting such priority. it and keep it in running order and pre- Constitutional law validity of statute vent its deterioration, and from the making - when determined. of such repairs with the knowledge of

2. It therefore becomes unnecessary to appellees, we conclude that there was an im-determine whether the 1907 statute is or is plied authority and permission from appel- not unconstitutional, because, though the lees, as mortgagees, to Mr. Polk, as mort. Boyle Brothers must recover under the

prior

same may be assumed to be unconstitutional, gagor, to have such repairs made, and that existing law (S 6295, Rev. Codes 1905, Comp. appellants have a paramount and superior Laws 1913, 8 6877), while, if 1907 statute lien to that of appellees on the property be constitutional, it in express terms aufor the payment of the labor they performed thorizes defendants' recovery. and materials furnished in repairing it. Same when considered.

Reversed, and judgment here in favor of 3. This court will decline to pass upon appellants.

the constitutionality of a statute, where the same is unnecessary to a decision of the right of recovery.

Mortgage waiver, NORTH DAKOTA SUPREME COURT. 4. No question of waiver of mortgage

rights is involved, because all rights of REEVES & COMPANY, Appt.,

plaintiff under its mortgage were subordi.

nate to the rights of those claiming under S. R. RUSSELL et al., Respts.

the artisan's lien.

Same - subjecting property to artisan's (28 N. D. 265, 148 N. W, 654.)

lien.

5. The fact that the owner, employing Mechanics' lien priority over mort- Boyle Brothers to repair the engine, had gage.

purchased from the mortgagor, who sold 1. Action for foreclosure of chattel mort- the mortgaged property without written gage of record. Boyle Brothers answer, consent, does not affect the title of such

property in the purchaser, who, as owner, Headnotes by Goss, J.

could authorize repairs thereto, and subject Note. - Priority of lien for services on , II.--continued.

personal property over prior chattel b. Expressly superior to other liens, mortgage.

1153.

c. Priority not declared by statute. I. Common-law lien.

1. In general, i154.
a. In general, 1150.

2. Lien of producer, 1156.
b. Services procured by authority of
miortgagee, 1151.

This note does not include the question II. Statutory lien.

of priority of maritime liens over chattel a. Expressly subject to prior liens, mortgages on vessels. 1152.

For priority as between the lien of a chat

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the same to an artisan’s lien for repairs so, construction and application of statutes de authorized; such owner being, for such pur-claratory thereof, and such statutes conposes, considered in law as the agent of the strued and applied as continuations of or mortgagee.

legislative declarations of the common law,

so far as covered by such statutes. On Petition for Rehearing.

Same alteration of common law Mechanics' lien

presumption. statutory priority. 6. Where at common law an artisan’s alter the common law, "other than what has

9. The statute will not be presumed to common-law lien had priority over existing been specified and besides what has been contract liens, and the statute granting an artisan’s lien is but declaratory of com

plainly pronounced.” mon-law principles, and is silent on such Mechanics’ lien priority statutory question of priority, the common law grant- provision. ing priority to the common-law lien must 10. The statute here declaratory of the be construed to grant priority to the lien common law as to the lien, but silent on its so declared by statute, and but declaratory priority, will not be enlarged by negative of the common law.

construction to deny priority existing at

common law to the lien so defined, but will Cominon law adoption. 7. The common law is adopted by stat; of the lien, and the common-law priority

be limited in application to the definition ute as the basic law applicable to civil considered as continuing in force and aprights and remedies not "denined by statute. plicable to the lien; the common law as to Statute construction common law. priority supplementing the lien as at com8. The common law must, as

to civil mon law. The statute will be construed as rights and remedies, be considered in the l a continuation of the common law, and not tel mortgage and a lien acquired by fur-, household goods subject to a duly recorded nishing food or care to animals, see note to chattel mortgage, has no lien on the goods National Bank v. Jones, 12 L.R.A. (N.S.) for the moving and storage, as against the 310.

mortgagee, although he had no actual noAs to the right to a lien for repairs or tice of the mortgage, and the storage was other services under a contract with a pur- necessary for the preservation of the propchaser under a conditional sale, ste note to erty, and the mortgagee, upon being inShaw v. Webb, ante, 1141.

formed of the moving and storage, expressed As to the improvement of personal prop- no disapproval thereof. Storms v. Smith, erty at the request of a bailee as creating 137 Mass. 201. liability against the bailor or the property, And the common-law lien of one who has see note to Baughman Automobile Co. v. made repairs upon a buggy at the request Emanuel, 38 L.R.A. (N.S.) 97.

of the mortgagor in possession after con

dition broken is subordinate to a prior, duly I. Common-law lien,

recorded chattel mortgage, where a mort

gagor is held to have no title or interest in, a. In general.

but only bare permissive possession of, the

mortgaged property after breach of condiGenerally, in the absence of express au- tion, and there is nothing to show that the thority, or circumstances showing implied mortgagee, or anyone acting on his behali, authority, from the mortgagee to procure authorized the repairs. Hampton v. Seible, services in connection with personal prop- 58 Mo. App. 181. erty, a common-law lien on the property But it has been held that a workman for such services furnished at the request who is in possession of bricks, in the manuof the mortgagor is subordinate to the lien facture of which for another he has spent of a prior chattel mortgage, if the lien his labor, is entitled to an art san's lien claimant had notice, either actual or con- thereon superior to a previously executed structive, of the prior mortgage.

chattel mortgage covering all brick in Thus, a mechanic's lien for repairs made course of manufacture from time to time on an engine at the request of the mortga- during the continuance thereof. Roberts v. gor is subordinate to a prior, duly filed and Bank of Toronto, 25 Ont. Rep. 194. renewed chattel mortgage thereon for the And in Loss v. Fry, 1 N. Y. City Ct. Rep. purchase price. Denison v. Shuler, 47 Mich. 7, it was held that the lien of a mechanic 598, 41 Am. Rep. 734, 11 N. W. 402. upon coaches of which he had possession,

And a warehouseman's common-law lien for necessary repairs made thereon by him for storage charges on furniture and house for the owner, was prior in law to the lien hold goods stored by the mortgagor in pos- of a chattel mortgage made and duly filed session, or one holding under him, does not pursuant to statute prior to the making of take precedence of a prior recorded chattel such repairs. mortgage in which there is nothing which And see also REEVES & Co. v. RUSSELL. would give the mortgagor authority to store The court, however, in Loss v. Fry, supra, the property with a warehouseman. Vette merely followed the holding of the general v. Leonori, 42 Mo. App. 217.

term of the supreme court in Scott v. DelaSo, one who, at the request of the mort- hunt, 5 Lans. 372, which was subsequently gagor in possession, has moved and stored affirmed in 65 N. Y. 128, and which inas excluding the common law on that part Messrs. Lawrence & Murphy, for apof the subject not covered by the statute. pellant: Statute repeal revivor of common The lien statute is unconstitutional and law.

inoperative upon plaintiff's mortgage, exe11. Where a statute either declaratory of cuted and filed prior to the passage of such or changing the common law is repealed statute, and is contrary to both state and without express provision against the revivor of the common law, the common law Federal Constitutions as a law impairing is ipso facto revived by such repeal, which the obligation of a contract. repeal will be regarded, in the absence of a Walker, Am. Law, 11th ed. p. 217; Yeatcontrary legislative intent appearing, as an man v. King, 2 N. D. 421, 33 Am. St. Rep. affirmance of the common law, reviving the 797, 51 N. W. 728; Howard v. Bugbee, 24

How. 461, 16 L. ed. 753; 8 Cyc. 900; Na

tional Bank v. Jones, 18 Okla. 560, 12 (May 8, 1914.)

L.R.A.(N.S.) 310, 91 Pac. 191, 11 Ann. Cas.

1041; Toledo, D. & B. R. Co. v. Hamilton, PPEAL by plaintiff from a judgment of 134 U. S. 296, 33 L. ed. 905, 10 Sup. Ct.

same,

A .

ty in defendants' favor in an action brought & S. D. Co. 29 C. C. A. 1, 42 U. S. App. to foreclose a chattel mortgage on a thresh- 701, 85 Fed. 43; Kilpatrick v. Kansas City ing machine, and to determine priority of & B. R. Co. 41 Am. St. Rep. 758, note; liens thereon. Affirmed.

Giles v. Stanton, 86 Tex. 620, 26 S. W. 615; The facts are stated in the opinion. 1 Jones, Liens, $ 701. volved a lien for repairs to a boat, as to repairs, the mortgagor in possession will which it seems that a different rule may be constituted the agent of the mortgagee prevail, upon the theory that necessary to procure the repairs to be made, and as repairs made upon a boat at the request of such necessary repairs are for the betterthe mortgagor in possession and use thereof ment of the property, and add to its value are made upon the implied consent and au- to the gain of the mortgagee, the commonthority of the mortgagee.

law lien in favor of the mechanic for the And in REEVES & Co. v. RUSSELL, the value of the repairs is paramount and sucourt seems also to have based its holding perior to the lien of the mortgagee. The as to the priority of the artisan's lien over mortgagee is presumed in such case to have the prior recorded chattel mortgage upon contracted with a knowledge of the law givimplied authority of the mortgagor to bind ing to a mechanic a lien." the mortgagee by a lien for repairs; the So, where a locomotive engine mortgaged court stating generally that the owner of with the other equipment of a railroad was mortgaged property is the implied agent of the only engine belonging to the mortgagor, the mortgagee for the authorization of re- and used in the operation of its railroad, pairs thereto, whose act as such binds the and by the terms of the mortgage it was mortgagee and subordinates the mortgage left in the possession of the mortgagor, and lien to that of the artisan.

after the debt became due was still permitAs to the priority of a lien for services | ted by the mortgagee so to remain, to be procured by express or implied authority of used by the mortgagor in operating the the mortgagee, see subdivision, I. b, infra. railroad and earning the money to pay the

mortgage debt; and by virtue of such use b. Services procured by authority of

it became worn, out of repair, and unfit for mortgagee.

use, and was by the mortgagor in possession,

long after the debt matured, and after Where a mortgagor in possession of per- there was a forfeiture of the conditions in sonal property has express authority, or the the mortgage, intrusted to machinists and nature of the property and surrounding mechanics to repair,-the necessary implicacircumstances are such as to give him im- tion was, and the fair presumption is, that plied authority, from the mortgagee, to the engine was to be kept in repair; and procure services in connection therewith, a that, being machinery requiring skilled mecommon-law lien for such services may be chanics and machinists to repair it, it superior to the prior chattel mortgage. As would be intrusted to such persons to make stated in Watts v. Sweeney, 127 Ind. 116, necessary repairs; and the lien of the me22 Am. St. Rep. 615, 26 N. E. 680: “Where chanics making such repairs is superior to property is to be retained and used by the the prior chattel mortgage. Ibid. mortgagor for a long period of time, it will And where the mortgagee of certain gradbe presumed to have been the intention of ing tools used in the construction of railthe parties to the mortgage, where it is roads permitted the mortgagor to remain property liable to such repairs, that it is in the possession and use thereof after conto be kept in repair; and when the prop- dition broken, a blacksmith who has reerty is machinery, or property of a charac- paired the tools at the instance and request ter which renders it necessary to intrust of the mortgagor thus remaining in posses. it to a mechanic or machinist to make suchsion has a common-law artisan’s lien on the

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