CERTIOBART to to judgment affirming a

ERTIORARI to the Court of Civil Ap-, wards, 87 Tenn. 510, 3 L.R.A. 654, 11 S. W. 316.

judgment of the Circuit Court in plaintiff's favor in a suit to enforce a mechanics' lien en an automobile for the amount of a repair bill. Reversed.

The facts are stated in the opinion. Messrs. R. B. C. Howell and Chester K. Hart, for plaintiff in certiorari:

The title of a vendor under a conditionalsale contract is superior to a mechanics' lien under chapter 150 of the Acts of 1909, when work and repairs are done on and put on an automobile by a mechanic at the request of a conditional vendee of said automobile without the knowledge of the conditional vendor, and before the maturity of the payment for said car by the conditional vendee.

McCombs v. Guild, 9 Lea, 81; Houston v. Dyche, Meigs, 75, 33 Am. Dec. 130; Price v. Jones, 3 Head, 84; McGhee v. Ed

ing food or care to animals, see note to National Bank v. Jones, 12 L.R.A. (N.S.) 310. 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.

The right to a lien for repairs or improvements made on personal property, or for other services furnished in connection therewith, pursuant to a contract with a purchaser thereof under a contract of conditional sale whereby the title to the property is reserved in the vendor, while the vendee has possession, would seem to depend upon the lien claimant's knowledge or notice, actual or constructive, at the time of making the repairs or improvements, or furnishing the other services, as to the title to the property; upon the terms of the statute creating the lien, in case it is not merely a common-law lien; and upon the terms of the contract of conditional sale, as implying authority in the vendee to obtain repairs or

not.

Thus, one who, with knowledge, actual or constructive, of the vendor's title, makes repairs upon personal property at the request of the vendee in possession under a contract of purchase, the terms of which are unperformed, can have no lien upon the property, as against the vendor, for the repairs, unless the vendee was authorized by the vendor to impose such a lien. Small v. Robinson, 69 Me. 425, 31 Am. Rep. 299.

Mr. Robert L. Sadler, for defendant in certiorari:

Akers, the conditional vendee, was the owner of the automobile within the meaning of the statute providing that a mechanic has a lien on an automobile for work done or repairs furnished by contract with the owner or his agent.

Marshall v. Penington, 8 Yerg. 424; Alley v. Lanier, 1 Coldw. 542; 29 Cye. 1550; Keith v. Maguire, 170 Mass. 210, 48 N. E. 1090; State use of Ray County v. St. Joseph, St. L. & S. F. R. Co. 46 Mo. App. 466; Nance v. Piana Co. 128 Tenn. 1, 155 S. W. 1172, Ann. Cas. 1914D, 834.

Williams, J., delivered the opinion of the court:

Shaw sold an automobile to one Akers, the purchase price being represented in two the vendor knew that the repairs were being made on the property, and that the vendee was insolvent. Baughman Automobile Co. v. Emanuel, 137 Ga. 354, 38 L.R.A. (N.S.) 97, 73 S. E. 511.

And a conditional vendor who merely knew that improvements were being made on an automobile which he had sold under a contract whereby he retained title to the property does not, by taking the machine from the conditional vendee, after default, and when the repairer is seeking to subject it to a lien for the labor and material furnished by him, create any liability which will subject his property to the lien, as by an acceptance of the improvements, where the improvements are of such a nature that he has no choice but to accept them; such acceptance not being voluntary. Ibid.

It would seem, however, although no decision upon this point has been found, that one claiming merely a common-law lien for services to personal property, depending upon the continued possession of the property, should be entitled to such lien, although the services were performed at the request of a conditional vendee in possession without title, where he had, at the time of the services, no knowledge or notice, either actual or constructive, as given by statutory filing or recording of the contract, of the vendor's title to the property.

But, as held in SHAW v. WEBB, although a mechanic making repairs at the request of a conditional vendee in possession had no notice of the vendor's title, he is not entitled, as against the vendor, to a lien depending upon a statute providing therefor in case of repairs at the request of the owner or his agents.

And one who, knowing at the time that the title to the property was in another person, and that the one requesting the repairs was insolvent, has performed labor and furnished material to repair an automobile 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 payerty, 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 im

ery furnished at the request of the owner or his agent in favor of the mechanic, contractor, founder, or machinist who undertakes the work," etc.

Judgment was rendered in favor of the mechanic by the circuit judge, who tried the case without the intervention of a jury. On appeal that judgment was affirmed by the court of civil appeals; and we are, by petition for certiorari, asked to review the judgment of the court last named.

notes, each of which contained a stipula- | improvements made or fixtures or machintion retaining title to the machine to secure payment. The machine passed at once into the possession of the vendee. Some time thereafter it became necessary to have some repairs made on it, and the automobile was taken to Webb, a mechanic, about the date of the maturity of the first note. After the repairs were placed the machine was turned back by the mechanic to the conditional vendee, Akers. On default being made in the payment of the first maturing note, Shaw, by writ of replevin, repossessed himself of the machine. Suit was thereupon brought by Webb, the mechanic, against Shaw, the vendor, to enforce a claimed mechanics' lien on the automobile for the amount of the repair bill so created.

This action was predicated upon a recent statute (Acts 1909, chap. 150) which provides: "That there shall be a lien upon any vehicle for any repairs or pliedly to authorize the vendee to have re-, pairs made by a third person while title to the property remains in the vendor, one making repairs under a contract with the purchaser may have a lien therefor, even as against the vendor. Thus, a coach builder who has repaired a dogcart under a contract with the hirer thereof under a hire purchase agreement whereby the hirer was to pay for the cart by monthly instalments has a lien for the cost of the repairs against the lessor in the hire-purchase agreement, where that agreement provided that the hirer was "to keep and preserve the said dogcart from injury," thus contemplating that repairs should be made, and implying that the hirer should have reasonable repairs made by a coach builder if necessary. Keene v. Thomas [1905] 1 K. B. 136, 74 L. J. K. B. N. S. 21, 53 Week. Rep. 336, 92 L. T. N. S. 19, 21 Times L. R. 2.

And under a statute declaring the right and lien which a mechanic has at common law on all personal property in his possession, for repairs, and providing a method for the enforcement thereof, one who has made necessary repairs on an automobile intrusted to him for that purpose by a conditional vendee in possession, who had been using the automobile for a long period of time, with the knowledge and consent of the conditional vendor, who also had knowledge that the vendee, in the course of his use of the property, was having it repaired, and made no objection thereto,-has a paramount and superior lien to that of the vendor of the property for the payment for the labor performed and materials furnished in making the repairs. Broom v. Polk, post, 1146.

And statutes providing that every person who has expended labor, skill, or material on any chattel at the request of its owner shall have a lien upon the chattel for the price or value of such expenditure, etc., and that "every person who is in posses

The mechanic had no actual notice of the retention of title; and the conditional vendor did not know that the machine was placed with the mechanic to be repaired. It is to be noted that we are not dealing with a claim by Webb to the artisan's common-law lien which depends for validity, as against third parties, upon the retention of possession on the part of the artisan. Here sion of a chattel, under an agreement for the purchase thereof, whether the title there to be in him or his vendor, shall, for the purposes of this act, be deemed the owner thereof, and the lien of a person expending material, labor, or skill thereon shall be superior to and preferred to the rights of the person holding the title thereto, or any lien thereon antedating the time of expenditure of the labor, skill, or material thereon by a lien claimant, to the extent that such expenditure has enhanced the value of such chattel," have been held not to be unconstitutional. Crosier v. Cudihee, Wash. -, 147 Pac. 1146.

Innkeeper's lien.

Under a statute providing that the keeper of a boarding house has a lien upon, while in possession, and may detain, property brought upon his premises by a boarder, for the proper charges due from him, unless the boarding-house keeper had notice that such property was not, when brought upon the premises, the property of the boarder,— a boarding-house keeper who received as boarders a husband, wife, and child, has a lien, for board furnished to them, upon a piano which they brought with them to the boarding house, without notice to the keeper that it was not their property, although it had been purchased by the wife under a conditional-sale contract reserving title to the vendor, which contract was not filed, or a duplicate furnished to the purchaser, as required by statute, to render it valid as against a pledgee in good faith. Leonard v. Harris, 147 App. Div. 458, 131 N. Y. Supp. 909, affirmed without opinion in 211 N. Y. 511, 105 N. E. 1089.

As to the lien of an innkeeper on property of a third person, including the vendor in a conditional sale, in possession of a guest, see Horace Waters & Co. v. Gerard, 24 L.R.A. (N.S.) 958, and note. A. C. W.

(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 supe

for value and without notice. Price v. Jones, 3 Head, 84; McCombs v. Gould, 9 Lea, 81.

Thus, 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 held that the fact that the mortgagor is permitted to remain in possession of a mortgaged automobile affords him no implied authority to create a lien thereon for storage (a lien by statute in that state) superior to the rights of the mortgagee, and that the rights are not changed by the fact that the mortgagee knew that the mortgagor was keeping the machine in a public garage.

The claim advanced in this case in behalf of Webb as lienor is based upon a statute which awards a lien, notwithstanding the mechanic may have parted with possession, upon any vehicle "for any repairs or improvements made at

the request of the owner or his agent," but saving the rights of purchasers without notice under good-faith transfers.

The question for solution, then, is: Is this statutory lien superior to the rights of Shaw, the conditional vendor?

We have not been cited, nor have we been able to find, where the point in the presented phase has been ruled in any reported case. We are of opinion, however, that on the above and other analogies of the law the lien claimant must fail in the pending

case.

The Michigan court ruled in Presque Isle, Sash & Door Co. v. Reichel, 179 Mich. 466, 146 N. W. 231, that the title of a conditional seller of a saw has priority over a statutory lien of a laborer for services in installing the saw in a mill under contract with the vendee.

Where real estate is the subject-matter of transfer and the vendor retains the legal title, it is not within the power of the vendee, under a bond for title or under a contract to convey (nothing else appearing), to fix a mechanics' lien upon the property which will be superior to the title so retained. Gillespie v. Bradford, 7 Yerg. 168, 27 Am. Dec. 494; Rhea v. Allison, 3 Head, 176; Belnap v. Condon, 23 L.R.A. (N.S.) 601, note.

It is not easy to conceive, then, how the title retained or lien that is prior in time may be supplanted by a junior lien, created by statute in behalf of a mechanic, without the concurrence of the holder of the precedent lien; and it is not contended that any such express assent or concurrence is shown in the pending case.

There are cases which hold that such consent may be implied from the nature of the transaction or from the circumstances. In Hammond v. Danielson, and Watts v. Sweeney, supra, the chattels were in use by public carriers, and the courts found room to imply such consent. In Drummond Carriage Co. v. Mills, 54 Neb. 417, 40 L.R.A. 761, 69 Am. St. Rep. 719, 74 N. W. 966, involving a buggy, the court construed the language of the mortgage to have had the making of repairs in contemplation.

Doubtless a court, in order to sustain a claim to lien, would not hesitate to seize upon any provision in a contract retaining title or in a mortgage which may be construed to look to the making of repairs or improvements at the instance of the vendee or mortgagor in possession. Ragon v. Howard, 97 Tenn. 334, 37 S. W. 136; Drummond Carriage Co. v. Mills, supra.

The English courts, it appears, take this view of the rights of the parties. In the recent case of Keene v. Thomas [1905] 1 K. B. 136, where by a hire-purchase agreement plaintiff had let a dogcart to one Robertson, who, in the course of time, sent the cart to be repaired to defendant, a couch builder, Lord Chief Justice Alverstone said: "This case raises an important point, and one on which there is not much direct authority. I am rather surprised, indeed, that there is not more, but probably hire-purchase agreements were not SO common formerly as they are now. I think that the county judge has come to a right conclusion. The real question that we have to decide is that stated by Alderson, B., in Buxton v. Baughan (1834) 6 Car. & P. 674, 40 Revised Rep. 842, namely, whether the man who made the bargain with the repairer had authority from the plaintiff to make such a bargain. There is no doubt that Robertson made the 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

The prior rights of a mortgagee of realty under a registered mortgage cannot be so affected by the mortgagor in possession (New Memphis Gaslight Co. Cases, 105 Tenn. 268, 302, 80 Am. St. Rep. 880, 60 S. W. 206), even where the mortgagee merely knew of the repairs or improvements (Pride v. Viles, 3 Sneed, 125).

to be made and a consequent lien to attach APPEAL by petitioners from a judgment