Bernstein v. Schelben
| Citation | 111 So. 97,144 Miss. 717 |
| Decision Date | 17 January 1927 |
| Docket Number | 26154 |
| Court | Mississippi Supreme Court |
| Parties | BERNSTEIN et al v. SCHELBEN. [*] |
Suggestion of Error Overruled Jan. 31, 1927.
(Division B. Suggestion of Error Overruled Jan. 31, 1927.)
MORTGAGES. Mechanic's lien for repairs to machinery affixed to soil is secondary to mortgages of record at such time (Hemingway's Code, sections 2418, 2429, 2435).
Under Hemingway's Code, section 2429 (Code 1906, section 3069) mechanic's lien for repairs to machinery affixed to the soil is secondary to that of mortgages of record at such time, since lien arises by virtue of section 2418 (section 3058), and not under section 2435 (section 3075) on theory that machinery is personal property.
APPEAL from circuit court of Washington county, HON. S. F. DAVIS Judge.
Suit by Fred Schelben against A. H. Bernstein and others. Judgment for complainant, and defendants appeal. Reversed and judgment rendered.
Judgment reversed.
Percy & Percy, for appellants.
The appellee evidently erroneously prosecuted this action under the belief that the services rendered and materials furnished by him as mechanic occupied the same position as if such services were rendered and materials furnished in connection with personal property. The services were rendered and materials were furnished in connection with the repair of machinery affixed to the soil and were fixtures and such machinery was never in the possession of the appellee. Under the common law it was essential in order for the mechanic to maintain a lien that the machinery repaired by him should have been in his exclusive possession. 6 C. J. 1193. Our statute, section 2435, Hemingway's Code, does not enlarge the statutory rights of a mechanic but merely announces the common law and in addition thereto preserves the mechanic's lien under certain conditions when he has parted with the possession thereof. Broom v. Dale, 109 Miss. 52.
The law with reference to the repair of fixtures is dealt with by sections 2418-2429, inclusive, Hemingway's Code. We call the court's attention particularly to the fact that prior to the time the services were rendered and material furnished, as appears from the agreed statement of facts, there were three mortgages on the land, one of said mortgages being subsequently foreclosed and the property bought in by A. H. Bernstein. Under the common law there was no lien in favor of a mechanic as against fixtures but such lien was and is declared under the provisions of section 2418. The subsequent section deals with the method of enforcing the lien and section 2429, which makes the provision for the sale of the fixture under this particular proceeding and which provides the only method of enforcing the judgment obtained by a mechanic or materialman who has performed services or furnished material in connection with the repair of a fixture, provides if the fixture has been repaired subsequent to a former encumbrance on the land, the purchaser (at the execution sale) shall acquire the same, subject to such encumbrance; and, further, the prior lien of a mortgage is not affected unless the mortgagee consented in writing to the repair of the fixture. In the instant case it is expressly agreed that not only did the mortgagee and trustees have no knowledge of the repairs, but did not consent thereto. See Big Three Lumber Co. v. Curtis, 130, Miss. 74.
We, therefore, contend that whatever lien appellee may have had against the fixture was subordinate to the mortgages which existed prior to the performance of the services rendered in the repair of the machinery and that the foreclosure of the prior encumbrance wiped away any lien which Schelben may have had.
Percy Bell, for appellee.
The principle relied upon here is that stated in 6 C. J., pages 1138-39. The appellee claimed that when machinery of this kind was left in possession of the mortgagor to be operated, there was an implied agreement on the part of the mortgagee that necessary repairs thereto should be made in order to continue its operation and preserve its usefulness and that such repairs would constitute a lien rising superior to the mortgage lien. The rationale of this doctrine is, of course, clear. The repairs preserved the security and enhanced it. Had that not been done, the mortgagee would have had a lot of useless junk on his hands instead of an operating plant.
In Broom v. Dale, 67 So. 659, 119 Miss. 52, the court sustains a lien upon an automobile which had passed out of possession of the mechanic. We direct the attention of the court to the concluding paragraphs of that opinion. The agreed statement of facts brings this case within the Broom case.
The same question was presented in Orr v. Jackson Jitney Car Co., 75 So. 945. In Hollis & Ray v. Isbell, 87 So. 273, the court did not sustain the lien for the reason that there was no knowledge shown on the part of the vendor who retained title of the repairs, nor did the records show that the repairs increased the value of the machinery.
In the instant case we hold that the very nature of the case shows that the owners of the mortgage were bound to know that the machinery was liable to breakage and would require repairs and the implied consent for its repair would necessarily arise from the substance of the kind of security which they had.
In Big Three Lumber Co. v. Curtis, 93 So. 487, the court held that the mechanic's lien against the building erected should be sustained. Even though in that case the buildings were erected without the consent of the mortgagee, there could be no necessary implied consent in that case because the nature of the security did not contemplate its probable breakage and repair.
Counsel for appellant relies upon two propositions: (1) That the machinery which was repaired was affixed to the soil; (2) that the appellee parted with possession of the machinery repaired.
The court below was correct in its ruling and its judgment should be affirmed.
This suit was brought to enforce a mechanic's lien against certain machinery, in a brick plant, which was repaired by the appellee, Schelben, while it was in the possession of the mortgagor. The land and machinery were subsequently purchased by the mortgagee, Bernstein, under a foreclosure sale; the mortgage being against the land and the machinery, which mortgage was executed and duly recorded before the repairs were made by the mechanic.
The question presented for our decision is whether or not a mechanic's lien for repairs upon machinery in a brick plant operated by the owner, upon which a prior mortgage had been given, is superior to a lien of the mortgagee and purchaser at a foreclosure sale, where the repairs were necessary for the preservation and operation of the machinery, and where the machinery repaired "was affixed to the soil and was a fixture."
The agreed statement of facts in the case is as follows:
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...not be the absolute owner nor own a fee in the land in order to be an owner within the meaning of the statutes. 40 C. J. 93; Bernstein v. Schelben, 111 So. 97. term "owner" includes not only those who have an estate in fee in the land, but also those having an estate less than freehold. One......
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...on execution by sale of the lien would acquire the property subject to the Bryan Brothers' first deed of trust. Bernstein v. Schelben, 144 Miss. 717, 111 So. 97 (1927), is controlling on this point. Schelben brought suit to enforce a mechanic's lien against certain machinery in a brick plan......