City Nat. Bank v. Laughlin

• Citation: 210 S.W. 617
• Decision Date: 26 February 1919
• Docket Number: (No. 1470.)
• Parties: CITY NAT. BANK OF WICHITA FALLS v. LAUGHLIN et al.
• Court: Court of Appeals of Texas

210 S.W. 617

CITY NAT. BANK OF WICHITA FALLS v. LAUGHLIN et al.

(No. 1470.)

Court of Civil Appeals of Texas. Amarillo.

February 26, 1919.

Rehearing Denied March 26, 1919.

Appeal from Potter County Court; T. W. McBride, Judge.

Action by the City National Bank of Wichita Falls against S. G. Laughlin and others. From a judgment for defendants Henderson and Lefforge, plaintiff appealed. Affirmed.

Veale & Lumpkin, of Amarillo, for appellant.

Madden, Trulove, Ryburn & Pipkin, and F. A. Cooper, all of Amarillo, for appellees.

BOYCE, J.

A reconsideration of this case on motion for rehearing has caused us to reverse our opinion rendered on original submission, and such opinion will be withdrawn and the following substituted in disposition of the case:

Appellant bank brought this suit on notes executed by appellee Laughlin and to foreclose a chattel mortgage on an automobile given to secure their payment. Appellees Henderson & Lefforge were in possession of the automobile, claiming a lien thereon to secure the payment of charges for labor and material in repair thereof, and were made parties defendant. The chattel mortgage provided that the mortgagor Laughlin should, at his own expense, care for said property to the satisfaction of the mortgagee. It was duly executed and recorded in July, 1917. In October, 1917, the said Laughlin placed the automobile in the garage of appellees Henderson & Lefforge, for repair, and appellees testified that these repairs "were necessary for its preservation and to put it in condition for use. The labor and material placed on the car increased its value in the sum of $66.35, the amount of our claim." It was also shown that the said Laughlin, for a year prior to the time when the car was placed in the appellee's garage, including the time between the giving of the mortgage and the repairs on the car, had been using it freely in his business. Under this state of facts, the trial court held the lien of the appellees Henderson & Lefforge superior to that of the chattel mortgage, and this holding presents the only question on this appeal.

The Constitution, by article 16, § 37, provides that —

"Mechanics, artisans and materialmen, of every class, shall have a lien upon the buildings and articles made or repaired by them, for the value of their labor done thereon, or material furnished therefor; and the Legislature shall provide by law for the speedy and efficient enforcement of said liens."

This provision is self-executing in the creation of the lien. McBride v. Beakley, 203 S. W. 1137; Wichita Falls Sash & Door Co. v. Jackson, 203 S. W. 100. Articles 5665 to 5667 of the Revised Statutes provide that the mechanic or artisan may retain possession of an article, vehicle, etc., repaired until the amount due on same for repairing shall be paid, and that after such possession has continued for a stated time the property may be sold in the manner provided, etc. The Constitution did not attempt to deal with the question of priority between the liens created by it and those otherwise created on the same property, and we do not doubt that the Legislature had authority to do this; the Legislature did, in the case of labor performed and material furnished in the erection of buildings and the improvements on lands, expressly legislate on the subject. Articles 5628 and 5629. But articles 5665 to 5667, just referred to, are the only provisions of the statute that expressly deal with this particular character of lien, and we are thus without any express statutory provision on the subject of priority unless it is to be found in the general provisions of article 5671, which we will discuss later.

Assuming for the present, then, that the statutes and Constitution do not provide any rule to determine the question of priority, we think that such question should be determined under the rules of the common law. Article 5492, R. S.; Swayne v. Lone Acre Oil Co., 98 Tex. 597, 86 S. W. 740, 69 L. R. A. 986, 8 Ann. Cas. 1117; Henderson v. Beaton, 52 Tex. 41; Ex parte King, 35 Tex. 658; Gordon v. State, 43 Tex. 339; Grigsby v. Reib, 105 Tex. 597, 153 S. W. 1125, L. R. A. 1915E, 1, Ann. Cas. 1915C, 1011; Reeves & Co. v. Russell, 28 N. D. 265, 148 N. W. 654, L. R. A. 1915D, 1149. Article 5492, referred to, reads:

"The common law of England, so far as it is not inconsistent with the Constitution and laws of this state, shall, together with such Constitution and laws, be the rule of decision, and shall continue in force until altered or repealed by the Legislature."

The Constitution and statutes are to be construed "in the light of the common law, and of the fact that its rules are still left in force." Cooley on Constitutional Limitations, p. 94. Now the artisan's or mechanic's lien for charges on property placed with him for repair existed at common law, independent of any statute. 17 R. C. L. p. 601, § 8; Jones on Liens, § 731. A portion of the provisions of the Constitution and of the statute referred to is merely declaratory of the common law, and we think that the decisions and principles of the common law in relation to the question of priority, where not inconsistent with the provisions of the Constitution and statute, would be applicable. Reeves v. Russell, 28 N. D. 265, 148 N. W. 654, L. R. A. 1915D, 1149.

The general rule that settles questions of priority of liens of all classes, to wit, that they take precedence in the order of their creation, is itself of common-law origin. That is the rule that appellant seeks to apply in this case. However, it is subject to exceptions, resulting from the application of other principles recognized by the law, and the appellees base their claim to priority on what they insist is an exception to the general rule stated. If the exception exists, as claimed, we see no particular reason why we should not apply it as well as the general rule, provided, of course, it is not inconsistent with the provisions of the statute and Constitution. What, then, would be the rule of priority between the two liens now asserted, independent of the Constitution and statutes? While the decisions are not altogether in accord, the weight of authority seems to favor the rule that, where a mortgagor of chattels is permitted to retain possession and use the same, and the property and use thereof is of such nature that it may be reasonably expected that from such continued use during the term of the mortgage repairs will probably be necessary, and repairs are made which enhance the value of and preserve the property, then the mechanic or artisan making such repairs under such conditions has a lien on the article repaired superior to the lien of the mortgagee. The repairs in such cases are for the benefit of both the mortgagor and the mortgagee, and the mortgagee may be held to have impliedly authorized them. Hammond v. Danielson, 126 Mass. 294; Watts v. Sweeney, 127 Ind. 116, 26 N. E. 680, 22 Am. St. Rep. 615; Ruppert v. Zang, 73 N. J. Law, 216, 62 Atl. 998; Reeves & Co. v. Russell, 28 N. D. 265, 148 N. W. 654, L. R. A. 1915D, 1149. The question has not been directly before our courts, but there are expressions by the Supreme Court in the case of Texas Bank & Trust Co. v. Smith, 108 Tex. 265, 272, 192 S. W. 533, 536, that would indicate the tendency of said court to follow such rule. In that particular case, the court was considering the question of priority between a lien on certain crops in favor of one furnishing water to irrigate them, made by the statute "superior to every other lien," and a contract lien given by the owner of such crops prior to the attaching of the statutory lien, and in course of the...