"Wherefore the question submitted to the court for decision is as to whose lien takes priority; and both parties pray the court for an appropriate judgment defining their rights in the premises."

The case was tried in the circuit court before the judge, jury being waived, upon an agreed statement of facts. The court gave judgment in favor of appellees, deciding that their claim upon the automobile, based on the title retained in the notes, was superior to that of appellants for labor and material used in making repairs thereon.

We quote the agreed statement of facts as follows:

"(1) That on the 20th day of June, 1911, S. S. Dale & Sons sold the automobile in controversy to F. R. Polk for the agreed price of $775, and retained title in themselves to the aforesaid automobile as se curity for the purchase price thereof; that there is now due and unpaid on account of said purchase price the sum of $465, with interest thereon at 10 per cent per annum from the 20th day of June, 1911; that J. A. Broom & Sons have known at all times that the said automobile had not been fully paid for by F. R. Polk as aforesaid; that said J. A. Broom & Sons do not question or deny the amount that S. S. Dale & Sons say that F. R. Polk is due them on account of this automobile, and the said automobile is of less value than the unpaid part of the purchase price for which title is retained; that S. S. Dale & Sons admit that the amount of $95.25 claimed by J. A. Broom & Sons is just and correct against F. R. Polk for material furnished and repairs made to the automobile involved in this litigation; that S. S. Dale & Sons have been aware and were fully advised during such time as such repairs were being made and material furnished as aforesaid were being made and furnished as aforesaid; that S. S. Dale & Sons at no time ever objected to repairs being made or material furnished for such repairs to the said automobile.

"Whereas, it is agreed by and between the attorneys for both parties that S. S. Dale & Sons retained a title in themselves for security for the purchase money of said automobile, and that they therefore have an equitable lien upon the said automobile for said purchase money to the amount now unpaid, and that the said J. A. Broom & Sons have a mechanics' lien upon the said automobile for the amount due them as aforesaid for repairs made to and material furnished for the said automobile:

In this state, by statute (§ 3075 of the Code of 1906), a mechanic is given the right to retain in his possession any arti

labor and material furnished in making such repairs shall be paid. The statute states that any article repaired shall be liable for the price of the labor and material employed in repairing the same. Provision is made in the statute for the enforcement of the mechanic's right, including a special order of sale of the property retained in his possession for the payment of the amount due.

A mechanic, at common law, has a lien on all personal property for repairs. Persons have by common law the right to retain goods on which they have bestowed labor, until the reasonable charges therefor are paid. 2 Kent, Com. 635. "In the absence of specific agreement, if a party has bestowed labor and skill on a chattel bailed to him for such purpose, and thereby improved it, he has by general law a lien on it for the reasonable value of his labor, or the right to retain it until paid for such skill and labor." Drummond Carriage Co. v. Mills, 54 Neb. 417, 40 L.R.A. 761, 69 Am. St. Rep. 719, 74 N. W. 966; Grinnell v. Cook, 3 Hill, 491, 38 Am. Dec. 663. It was said by Mr. Kent in his Commentaries that "this right rests on principles of natural equity and commercial necessity."

The statute (§ 3075) does not create a new right or lien for the mechanic's benefit, but only declares the right and lien which he has at common law, and then provides a method for the enforcement thereof.

By

In this case the automobile was intrusted by the party who had the lawful possession of it to the appellants to be repaired. virtue of the labor done by appellants and the material used by them in making the repairs, they had the right under the common law, as well as under the statute, to retain possession thereof until they were paid their charges, and by the statute were given the right to subject the article by proper proceedings and through sale to the payment of the amount owing.

Appellees, by retaining title to the notes given to evidence the purchase price, were placed in the position of a person holding a lien or mortgage on the property. Mr. Polk occupied the position of mortgagor in possession. It is the general rule that the employment of the mechanic making the repairs should be by the owner of the prop

It has been held that the common-law lien of a mechanic for repairs under special circumstances may be superior to prior existing liens on property. 3 R. C. L. § 56, p. 134; Drummond Carriage Co. v. Mills, supra. We quote as follows from 3 R. C. L. § 56, p. 134: "Thus, where property which is liable to need repairs is to be retained and used by a mortgagor for a long period of time, it will be presumed to have been the intention of the parties to the mortgage that it is to be kept in repair; and when the property is machinery, or is of such a character that it must be intrusted to a mechanic or machinist to make such repairs, the mortgagor in possession will be constituted the agent of the mortgagee to procure the repairs to be made; and as such necessary repairs are for the betterment of the property, and increase its value to the gain of the mortgagee, the common-law lien in favor of the bailee for the value of the repairs is paramount and superior to the lien of the mortgagee. The mortgagee is presumed, in such case, to have contracted with a knowledge of the law giving to a mechanic a lien."

In the case of Drummond Carriage Co. v. Mills, supra, a physician had executed a chattel mortgage on a buggy used by him in his practice. He had repairs made on the vehicle in the shop of the carriage company. The party holding the mortgage knew that the physician used the buggy, and knew that he had left it in the shop for repairs. The court held that the carriage company making the repairs was entitled to its lien superior to the lien of the chattel mortgage. The court said that in cases where the mortgagor can be said to have express or implied authority from the mortgagee to procure repairs to be made on the mortgaged property, that the lien of the mechanic should be superior to the chattel mortgage.

In the case of Watts v. Sweeney, 127 Ind. 116, 22 Am. St. Rep. 615, 26 N. E. 680, it was held that a mechanic who made repairs

on

a locomotive and tender had a lien which took precedence of that of the mortgagee, where the property was permitted to remain in the possession and use of the mortgagor, and through such use it became necessary to repair it. We quote from the opinion in this case as follows: "When the mortgagee intrusts machinery of the character in controversy to the custody of the mortgagor for a long period of time, to be used by the mortgagor in operating the railroad, it will be presumed against the mortgagee that all necessary repairs were contemplated, and the mortgagor was, in case

the mortgagee in procuring such repairs, and in such case equity gives the mechanic a lien for his services and materials. The repairs add to the value of the property, and they are for the benefit of the mortgagee, as well as the mortgagor. Where property is to be retained and used by the mortgagor for a long period of time, it will be presumed to have been the intention of the parties to the mortgage, where it is property liable to such repairs, that it is to be kept in repair; and when the property is machinery, or property of a character which renders it necessary to intrust it to a mechanic or machinist to make such repairs, the mortgagor in possession will be constituted the agent of the mortgagee to procure the repairs to be made; and as such necessary repairs are for the betterment of the property, and add to its value to the gain of the mortgagee, the common-law lien in favor of the mechanic for the value of the repairs is paramount and superior to the lien of the mortgagee. The mortgagee is presumed, in such case, to have contracted with a knowledge of the law giving to a mechanic a lien."

In the leading case on this subject (Williams v. Allsup, 10 C. B. N. S. 417) a shipwright was permitted to detain a vessel for his charges for repairs as against a mortgagee under a prior mortgage. These repairs were made by the mortgagor's directions without the knowledge of the mortgagee. Opinions were delivered in the case by several judges. We quote as follows from that delivered by Byles, J.: "As it is obvious that every ship will, from time to time, require repairs, it seems but reasonable, under circumstances like these, to infer that the mortgagor had authority from the mortgagees to cause such repairs as should become necessary to be done, upon the usual and ordinary terms. Now, what are the usual and ordinary terms? Why, that the person by whom the repairs are ordered should alone be liable personally, but that the shipwright should have a lien upon the ship for the work and labor he has expended on her. Nor are the mortgagees at all prejudicially affected thereby. They have a property augmented in value by the amount of the repairs."

In the case at bar the automobile was in the possession of Mr. Polk, and being used by him with the knowledge and consent of appellees, which use continued for a long period of time. Appellees not only knew and consented to the general use of the automobile by Mr. Polk, but also had knowledge that, in the course of his use of the property, he was having it repaired. Ap

From the agreed facts in the case we understand that the repairs were such as were necessary to preserve the automobile and keep it in proper condition for its use. Repair means to restore, renovate, or mend an article; to keep it in good or sound condition. Repairs, in the ordinary sense, are made to prevent deterioration in an article, and to keep it up in its value and preserve it for the use intended. It was clearly the intention of the parties that Mr. Polk, the mortgagor, should continue in the ordinary use of the automobile. While being so used it was necessary to keep it in a sufficient state of repair. This would be not only to the benefit of the user, Mr. Polk, but by preserving the value of the property, was also for the benefit of appellees as mort

gagees.

From the sole possession, control, and use of the automobile by Mr. Polk by agreement with appellees, from the manner of its use and the necessity of repairing it to preserve it and keep it in running order and prevent its deterioration, and from the making of such repairs with the knowledge of appellees, we conclude that there was an implied authority and permission from appellees, as mortgagees, to Mr. Polk, as mortgagor, to have such repairs made, and that appellants have a paramount and superior lien to that of appellees on the property for the payment of the labor they performed and materials furnished in repairing it.

Reversed, and judgment here in favor of appellants.

II. Statutory lien.

their artisan's lien for material, repairs, and labor performed upon the mortgaged personal property under a contract with The mortgage was taken in 1906, has been the owner of the mortgaged personalty. renewed, and is a valid mortgage upon the property. Boyle Brothers performed the work in 1911, immediately filing a claim for artisan's lien under chapter 168, Laws 1907, and also retained possession of the property under a claim of lien by virtue of such possession under § 6295, Rev. Codes 1905, Comp. Laws 1913, § 6877, in case chapter 168, Laws of 1907, be unconstitutional, and claim their lien under § 6295 to have priority over a lien by mortgage of record. Held, that an artisan's lien is a common-law lien, and where possession was retained, as here, the statute being but declaratory thereof, and such a lien at common law having priority over mortgage liens, an artisan's lien, under § 6295, Rev. Codes 1905, Comp. Laws 1913, § 6877, where possession is retained, has priority over existing mortgage liens, and this independent of the provisions of chapter 168, Laws 1907, in express terms granting such priority. Constitutional law

validity of statute

3. This court will decline to pass upon the constitutionality of a statute, where the same is unnecessary to a decision of the right of recovery. Mortgage

waiver.

4. No question of waiver of mortgage rights is involved, because all rights of plaintiff under its mortgage were subordinate to the rights of those claiming under the artisan's lien.

c. Priority not declared by statute. 1. In general, 1154.

2. Lien of producer, 1156.

This note does not include the question of priority of maritime liens over chattel

1152.

For priority as between the lien of a chat

Statute

adoption.

7. The common law is adopted by statute as the basic law applicable to civil rights and remedies not derned by statute. construction - common law. 8. The common law must, as to civil rights and remedies, be considered in the tel mortgage and a lien acquired by fur-, nishing food or care to animals, see note to National Bank v. Jones, 12 L.R.A. (N.S.) 310.

As to the right to a lien for repairs or other services under a contract with a purchaser under a conditional sale, see note to Shaw v. Webb, ante, 1141.

As to the improvement of personal property at the request of a bailee as creating liability against the bailor or the property, see note to Baughman Automobile Co. v. Emanuel, 38 L.R.A. (N.S.) 97.

1. Common-law lien.

a. In general.

Generally, in the absence of express authority, or circumstances showing implied authority, from the mortgagee to procure services in connection with personal property, a common-law lien on the property for such services furnished at the request of the mortgagor is subordinate to the lien of a prior chattel mortgage, if the lien claimant had notice, either actual or constructive, of the prior mortgage.

Thus, a mechanic's lien for repairs made on an engine at the request of the mortgagor is subordinate to a prior, duly filed and renewed chattel mortgage thereon for the purchase price. Denison v. Shuler, 47 Mich. 598, 41 Am. Rep. 734, 11 N. W. 402.

And a warehouseman's common-law lien for storage charges on furniture and household goods stored by the mortgagor in possession, or one holding under him, does not take precedence of a prior recorded chattel mortgage in which there is nothing which would give the mortgagor authority to store the property with a warehouseman. Vette v. Leonori, 42 Mo. App. 217.

So, one who, at the request of the mortgagor in possession, has moved and stored

construction and application of statutes declaratory thereof, and such statutes construed and applied as continuations of or legislative declarations of the common law, so far as covered by such statutes. Same - alteration of common law presumption.

priority

statutory

9. The statute will not be presumed to alter the common law, "other than what has been specified and besides what has been plainly pronounced." Mechanics' lien provision. 10. The statute here declaratory of the common law as to the lien, but silent on its priority, will not be enlarged by negative construction to deny priority existing at common law to the lien so defined, but will be limited in application to the definition considered as continuing in force and apof the lien, and the common-law priority plicable to the lien; the common law as to priority supplementing the lien as at common law. The statute will be construed as a continuation of the common law, and not household goods subject to a duly recorded chattel mortgage, has no lien on the goods for the moving and storage, as against the mortgagee, although he had no actual notice of the mortgage, and the storage was necessary for the preservation of the property, and the mortgagee, upon being informed of the moving and storage, expressed no disapproval thereof. Storms v. Smith, 137 Mass. 201.

And the common-law lien of one who has made repairs upon a buggy at the request of the mortgagor in possession after condition broken is subordinate to a prior, duly recorded chattel mortgage, where a mortgagor is held to have no title or interest in, but only bare permissive possession of, the mortgaged property after breach of condition, and there is nothing to show that the mortgagee, or anyone acting on his behalf, authorized the repairs. Hampton v. Seible, 58 Mo. App. 181.

But it has been held that a workman who is in possession of bricks, in the manufacture of which for another he has spent his labor, is entitled to an arsan's lien thereon superior to a previously executed chattel mortgage covering all brick in course of manufacture from time to time during the continuance thereof. Roberts v. Bank of Toronto, 25 Ont. Rep. 194.

And in Loss v. Fry, 1 N. Y. City Ct. Rep. 7, it was held that the lien of a mechanic upon coaches of which he had possession, for necessary repairs made thereon by him for the owner, was prior in law to the lien of a chattel mortgage made and duly filed pursuant to statute prior to the making of such repairs.

And see also REEVES & Co. v. RUSSELL. The court, however, in Loss v. Fry, supra, merely followed the holding of the general term of the supreme court in Scott v. Delahunt, 5 Lans. 372, which was subsequently affirmed in 65 N. Y. 128, and which in