Ellison v. Tuckerman

• Decision Date: 14 April 1913
• Citation: 24 Colo.App. 322,134 P. 163
• Parties: ELLISON v. TUCKERMAN et al.
• Court: Colorado Court of Appeals

134 P. 163

24 Colo.App. 322

ELLISON v. TUCKERMAN et al.

Court of Appeals of Colorado

April 14, 1913

Rehearing Denied June 10, 1913

Error to District Court, Weld County; Harry P. Gamble, Judge.

Action by Robert S. Ellison, administrator of S.D. McDaniel deceased, against James Tuckerman, receiver of Joseph E Painter and another, copartners, and another. Judgment for defendants, and plaintiff brings error. Reversed and remanded, with instructions.

H.E. Churchill, of Greeley, for plaintiff in error.

Robert S. Ellison, of Colorado Springs, pro se.

Charles E. Southard, of Greeley, for defendant in error Tuckerman.

H.N Haynes, of Greeley, for defendant in error Day.

KING J.

The writ of error herein was issued to the district court of Weld county to review a judgment of said court rendered in favor of the defendants, in the sum of $792.40, upon the following facts: April 10, 1907, Joseph E. Painter purchased from S.D. McDaniel 51 head of thoroughbred Hereford cows with 20 calves by their sides, for the agreed price of $2,860, in payment of which he gave his two promissory notes, one for the sum of $2,800 payable in six months, and one for $60 payable in one year after date, and to secure the same gave his chattel mortgage upon all of said stock. The mortgage was duly recorded in Weld county, Colo., April 12, 1907. September of that year McDaniel died, and plaintiff Ellison, a resident of Colorado Springs, El Paso county, was, by the county court of that county, appointed administrator of the estate. Prior to maturity, payments were made on the notes, reducing the principal to about $2,200. At the maturity of the last note the administrator extended said chattel mortgage until and including the 15th day of February, 1909, by sworn statement filed in Weld county, in conformity with the statute. July 6, 1908, in a suit pending in the district court of Weld county between said Painter and one Wilcox as partners, in which Wilcox sued his partner Painter for an accounting of partnership matters, and in which the stock mentioned was claimed to be partnership property, defendant Tuckerman was appointed receiver and by the court directed to take possession of this and other stock, as receiver, and to feed and care for the same, and also directed to notify the mortgagees of such order. About July 11th the receiver sent written notice of this order to the plaintiff at Colorado Springs, and on the 15th plaintiff answered, notifying the receiver of his mortgage and further warning him not to interfere with the stock or incur any expense with respect thereto. This notice was received by Tuckerman in due course of mail, but in the meantime, and on the 13th of July, he had taken possession of the stock and placed it in a pasture belonging to the defendant Day, under a contract to pasture the same for an agreed price. Day knew of the chattel mortgage, had read it, discussed it, and took the stock with such knowledge, after assurance from the receiver that he would be paid. Most of the stock was retained by Day until taken from him under writ of replevin, as hereinafter stated; the rest was kept by the receiver. Plaintiff was not notified that the receiver had taken possession of the stock until he attempted to foreclose the mortgage. On February 19th, four days after the date to which the mortgage was extended, the administrator demanded possession of the cattle; but such possession was refused by the defendants except upon condition that they be paid for pasturage and feeding, approximating the amount of the judgment. By permission of the district court plaintiff brought replevin against the receiver and Day for possession of the stock, or its value, and under proper writ took the stock, and thereafter sold it under the terms of the chattel mortgage for an amount less than the mortgage debt. At the time the stock was taken by the receiver it was in the possession of Painter, upon a ranch which belonged to him or to the co-partnership, and was removed to another pasture because it was better.

Plaintiff in error contends that his mortgage was a first and prior lien; that he had a reasonable time after maturity of the mortgage as extended in which to take possession, particularly in view of the fact that defendants had actual notice of his lien when they received the stock. He also contends that under the statute he had 30 days after maturity of said mortgage as extended in which to take possession, and that 30 days is a reasonable time. Defendants in error contend that the 15th day of February, the day fixed as the date to which the extension of the lien was limited, marked the life of the lien, and that no time thereafter is allowed in which to take possession; and further that the agister's lien, under the circumstances, was never subordinate to that of the chattel mortgage, but was always a prior lien, and further assert equities in their favor. The attorney for the defendant Tuckerman also makes the contention that the consent of the mortgagee for the defendants to feed the stock is implied from the facts in evidence; that the extension of the mortgage was illegal and of no effect, because the present law permitting extension by affidavit did not go into effect until after the execution and delivery of the chattel mortgage.

1. By virtue of the contractual provisions contained in the chattel mortgage, together with the provisions of the statute permitting the mortgagor to retain possession of the mortgaged chattels until maturity of the mortgage, in case a stipulation to that effect is incorporated in the mortgage and that instrument duly acknowledged and recorded, a lien, both contractual and statutory, is created, which is and remains prior and paramount to any subsequent lien created by contract of any kind to which the mortgagee is not a party or to which he does not give consent, actual or implied. The mortgagor alone cannot bind the property nor make it liable for liens for any purpose except as to his equity or interest therein in excess of the mortgage debt.

2. The agister's lien, the benefit of which is claimed by the defendants, is purely a statutory lien; it did not exist at common law. But we think it does not attach in the absence of relations or arrangements which amount to a contract, express or implied, between the agister and the owner of the property or of some interest therein, and then only to the extent of the interest of the person by whom the property is "intrusted" to the keeping of the agister. Auld v. Travis, 5 Colo.App. 535, 541, 39 P. 357; Hammond v. Danielson, 126 Mass. 294. Upon the question as to whether an agister's statutory lien is superior to a prior chattel mortgage lien, there is conflict of opinion, and courts of high repute have reached diverse conclusions. But we think the better rule is that the holder of a valid chattel mortgage, duly acknowledged and recorded, cannot be divested of his lien or subordinated therein to the claim or lien of an agister who takes the property at the instance or request of a mortgagor, or any other person, without the knowledge and consent of the mortgagee, except, perhaps, in case of necessity or some emergency taking it out of the rule, which does not here exist. We are satisfied with the reasoning and adopt the rule of the courts as found in the following decisions: Sargent v. Usher, 55 N.H. 287, 20 Am.Rep. 208; Charles v. Neigelsen, 15 Ill.App. 17; McGhee v. Edwards, 87 Tenn. 506, 11 S.W. 316, 3 L.R.A. 654; Hanch v. Ripley, 127 Ind. 151, 26 N.E. 70, 11 L.R.A. 61; Everett v. Barse Live Stock Comm. Co., 115 Mo. 482, 88 S.W. 165; Bank v. Jones, 18 Okl. 555, 91 P. 191, 12 L.R.A. (N.S.) 310, 11 Ann.Cas. 1041; Wall et al. v. Garrison et al., 11 Colo. 515, 19 P. 469. Numerous cases in support of this view are collated in a case note to Bank v. Jones, supra, in addition to which we cite 1 Jones on Liens, § 691; 19 Am. & Eng.Enc. of Law (2d Ed.) p. 438.

Counsel for defendants frankly admit that such is the majority rule in the courts of the United States, but insist upon the exceptions to that rule, and the benefit of the particular conditions found in the instant case. Case v. Allen, 21 Kan. 217, 30 Am.Rep. 425, and Smith v. Stevens, 36 Minn. 303, 31 N.W. 55, cited and relied on by defendants, were cases in which an agister's lien was held superior to a prior recorded mortgage lien; but the reasoning does not change nor shake our conviction that the other is the sounder and the better rule. As was well said by Berkshire, J., in Hanch v. Ripley, supra, in construing the statute of Indiana: "The language employed in the statute is general in its character. It does not seem to have been the intention of the Legislature to do more than to create a lien in favor of the classes of persons named; and, not having expressed any intention of giving to these persons superiority over other lienholders, we think it is but fair to presume that it was the intention of the Legislature to place them on a common plane with other lienholders, the first in the order of time having superiority. As the agister's lien depends alone upon the statute, it can have no greater force than the statute gives it; and, as the Legislature has, as we have said, manifested no intention of giving to it superiority over other liens, it can have none."

If the Legislature, in passing the lien law now under consideration intended to give superiority to the subsequent agister's lien, we would be disposed to accept the view taken by the Supreme Court of New Hampshire in Sargent v. Usher, supra, quoted with approval in Charles v. Neigelsen, supra, as follows: "The idea that a lien may be created by a contract of the possessor of animals for their keeping, the owner being in no way privy to such...