Dewar v. Hagans, Civil 4561

• Decision Date: 28 February 1944
• Docket Number: Civil 4561
• Citation: 61 Ariz. 201,146 P.2d 208
• Parties: J. A. DEWAR, Appellant, v. OLA E. HAGANS; W. C. WILLIAMS, J. D. WILLIAMS, C. R. WILLIAMS and ALPHA E. RUDD by J. H. WILLIAMS, Their Attorney-in-Fact, Appellees
• Court: Arizona Supreme Court

146 P.2d 208

61 Ariz. 201

J. A. DEWAR, Appellant, v. OLA E. HAGANS; W. C. WILLIAMS, J. D. WILLIAMS, C. R. WILLIAMS and ALPHA E. RUDD by J. H. WILLIAMS, Their Attorney-in-Fact, Appellees

Civil No. 4561

Supreme Court of Arizona

February 28, 1944

APPEAL from a judgment of the Superior Court of the County of Maricopa. H. G. Richardson, Judge. Judgment affirmed.

Mr Milton L. Ollerton, for Appellant.

Messrs Lewkowitz & Wein, for Appellee.

OPINION

McALISTER, C.J.

This is a suit to collect a promissory note and to foreclose a chattel mortgage securing the same. From a judgment in favor of the defendants, the plaintiff appeals.

The facts are not in dispute and may be stated as follows: On April 7, 1938, the defendant, Ola E. Hagans, gave A. Standish a promissory note for $1800, payable one year after date, and a chattel mortgage securing it also dated April 7, 1938 describing certain fixtures, show cases, soda fountain, etc located in the drug store of mortgagor at 606 West Van Buren Street, Phoenix, Arizona. It was signed by Ola E. Hagans and named A. Standish as mortgagee and was placed of record in the office of the county recorder of Maricopa County on April 9, 1938. Thereafter the note and mortgage were sold and assigned to the plaintiff and no part of the indebtedness being paid, the plaintiff asked for judgment against Ola E. Hagans for $1800, with interest at 6% from April 7, 1938, and for foreclosure of the mortgage.

Appellees W. C. Williams, J. D. Williams, C. R. Williams and Alpha E. Rudd, by J. H. Williams their attorney-in-fact, were made parties because they claimed title to the property described in the mortgage for this reason: The lot on which the drug store was located and in which the mortgaged property was situated, had been leased by appellees Williams to Ola E. Hagans, who had purchased the mortgaged property from Elnora Shupe on a conditional sales contract. The property was on the premises of appellees at the time it was purchased by Mrs. Hagans and, as part of the purchase price, she had assumed and agreed to pay $492 back rent owing by a man named Brown, who had occupied the leased premises prior to the Hagens lease. To pay this back rent, Mrs. Hagans had given appellees a note signed by herself and A. Standish in the sum of $397.30.

Subsequent to the execution and delivery of the note and mortgage to Standish, appellees brought an action on the note for $397.30 and for a month's rent claimed to be owing to them by Mrs. Hagans. When this action was filed, an affidavit of attachment in the usual form was signed by J. H. Williams and a writ of attachment was issued under which the sheriff took into his possession the stock of goods of the drug store run by Mrs. Hagans and the property described in the mortgage sought to be foreclosed. A judgment was entered in this action in favor of J. H. Williams, the plaintiff in the action, and against Mrs. Hagans, the attachment lien was foreclosed, the property attached was sold by the sheriff, and purchased at the sale by J. H. Williams for $350.

In the amended answer several defenses are set up, the first and principal one being a prior and superior lien to that of the mortgage by way of a landlord's lien which appellees claim was foreclosed through the action brought by them against Mrs. Hagans in which the property described in the mortgage was attached and the attachment lien foreclosed. It is the view of appellant, however, and he contends most strenuously, that when the affidavit of attachment was signed by J. H. Williams and a writ of attachment issued under which the sheriff took into his possession the goods, it was an abandonment by him of his landlord's lien and a waiver of any right to claim thereunder. So the question under this assignment is whether a landlord waives a right to his lien by causing a writ of attachment to issue against the property of the tenant under which the property is sold by that officer.

Two sections of the statute, 27-1215 and 71-306, Code of 1939, give the landlord a lien on the goods of a tenant placed upon the leased premises and provide for the enforcement of the lien by the seizure or taking into possession of the landlord the personal property of the tenant found on the leased premises. Instead, however, of taking possession of the property themselves, Williams secured a writ of attachment under which the sheriff was directed to, and did, take into his possession the property against which they claimed a landlord's lien and by the writ the sheriff was required to keep the property in his hands and hold it subject to the further order of the court unless it was replevied. The property remained in the sheriff's possession until it was sold, pursuant to an execution and at the sale appellees purchased the property.

When appellees had the writ of attachment issued, J. H. Williams swore in the affidavit of attachment that Ola E. Hagans was indebted to appellees on a contract for the direct payment of money and that the payment of the same had not been fully secured by a mortgage, lien or pledge.

The appellant claims that when these steps were taken by the appellees in connection with the mortgaged property, they waived and abandoned any landlord's lien they may have had against the property because everything they did was contrary to what the statute required of them if they were enforcing their landlord's lien.

This is in accord with a statement of the law found in 24 Cyc. 1248 wherein it is said that a landlord waives his lien by levying an attachment on the property subject to such lien, and in Wingard v. Banning, 39 Cal. 543, the same principle is announced. We have, however, found difficulty in applying this statement to the facts of this case. Under the law a landlord's lien attaches at the beginning of a tenancy and exists independently of the institution of any proceeding. Murphey v. Brown, 12 Ariz. 268, 100 P. 801, 803. In that case it is said:

"... The conclusion seems inevitable that the lien attaches for the entire [period] of the lease on all property of the tenant, placed upon or used on the leased premises, and subsists until all rent for the term has been paid...."

And in the case of Gila Water Co. v. International Finance Corporation, 9 Cir., 13 F.2d 1, 2, is found this language:

"We agree with the court below that the lien thus given is superior to any lien created by the tenant."

In Scottsdale Ginning Co. v. Longan, 24 Ariz. 356, 209 P. 876, 878, the rights of a landlord to a lien and how it may be enforced is discussed and among other things it is held as follows:

"In any determination of the remedies given by law to the landlord to enforce the lien on the crops, it is to be borne in mind that the statute is a remedial one, and must be construed so liberally as to effectuate its palpable purpose and that the purpose of the statute was manifestly to...