Federal Credit Co. v. Holloman
| Citation | 147 So. 485,165 Miss. 211 |
| Decision Date | 17 April 1933 |
| Docket Number | 30586 |
| Court | United States State Supreme Court of Mississippi |
| Parties | FEDERAL CREDIT CO. v. HOLLOMAN |
1 SALES.
Conditional seller could sue in replevin where buyer traded in automobile before it was paid for and dealer taking it in sold it to defendant.
2 SALES.
Dealer taking over automobile from buyer with knowledge of outstanding conditional sales contract took it cum onere.
3 AUTOMOBILES.
Dealer taking over automobile with knowledge of outstanding conditional sales contract, requiring buyer to keep it in repair, acquired no lien against itself for repairs made by it (Code 1930, section 2255).
4. LIENS.
Owner cannot have lien on his own property, since lien is merged into general property.
5. AUTOMOBILES.
Where dealer took in automobile on trade with knowledge of outstanding conditional sales contract requiring buyer to keep automobile repaired, and made repairs and later sold automobile and assigned asserted mechanic's lien for repairs to buyer, neither dealer nor buyer, assignee, could claim lien as against conditional vendor, and vendor could recover in replevin (Code 1930, section 2255).
HON. WM. A. WHITE, Judge; HON. T. B. BYRD, Special Judge.
APPEAL for circuit court of George county HON. WM. A. WHITE, Judge; HON. T. B. BYRD, Special Judge.
Suit by the Federal Credit Company against W. H. Holloman. From a judgment for defendant, plaintiff appeals. Reversed and rendered.
Reversed and judgment here for appellant.
Stevens & Heidelberg, of Hattiesburg, for appellant.
The retention of title is inconsistent with the theory of a lien, since it is not conceivable that one may have a lien upon property which absolutely belongs to him.
Lehman, Durr & Co. v. Wan Winkle & Co., 92 Ala. 443, 446, 8 So. 870.
The assertion of a lien is inconsistent with the assertion of a title.
Tallahassee Motor Co. v. Gilland Bros., 112 So. 758.
Any conversion of the subject of the bailment by the bailee will defeat any lien arising out of the contract of bailment, and a conversion by a bailee or garage keeper, of an automobile left in his custody, or retention of the car after knowledge that it is unlawfully held, may defeat any lien of the garageman and justify the owner's suit for conversion.
3 Blashfield's Cyc. Automobile Law, p. 2784, par. 112.
A sale of a chattel on condition that the property therein shall therein remain in the seller until the price is paid is valid against a third person claiming under the buyer, although the contract of sale was not recorded and such third person was without notice thereof.
Richton Overland Company v. McCormick Motor Car Company, 148 Miss. 616, 114, So. 387.
All liens are created by law or by contract of the parties. Hence, while ordinarily a bailee has a lien on a chattel where by the bestowal of skill and labor he has enhanced its value, such a lien arises from his employment to render the services, and, as a lien is in effect a proprietary interest or qualified ownership, it follows that the employment must be by the owner whose property is to be affected by the lien, or by his consent, express or implied; otherwise the bailee has no lien, and the true owner on demand is entitled to a delivery thereof without satisfying any charges which may have accrued in favor of the bailee against his bailor.
3 R. C. L. 133, par. 55; Hollis v. Isbell, 124 Miss. 799, 87 So. 273.
An owner cannot have a lien on his own property, as ownership and a lien are inconsistent interests, and the lien is merged into the general property.
O. F. Moss, of Lucedale, for appellee.
If a lienholder assigns a lien, the assignee has the same rights to enforce the lien as the assignor had.
Wingate v. Mississippi Securities Company, 152 Miss. 852, 120 So. 175; Sections 505, 506 and 507, Code of 1930.
It was not necessary to create this lien for appellant to have notice that the repairs were being made, and it matters not whether Smith Chevrolet Company knew there was a balance due to appellant or not, since the repairs increased the value of the automobile and were necessary to preserve the property, permit its operation and prevent deterioration.
Hollis v. Isbell, 124 Miss. 799, 87 So. 273.
The lien arises where a person in good faith, and under mistake as to the condition of the title, makes improvements, renders services, or incurs expenses that are permanently beneficial to another's property.
Miller v. Pickins, 26 Miss. 182.
A lien of this kind attaches to the property itself without any reference to ownership.
Ownership and a lien do not merge, that is, the lienor may acquire and own property without destroying his lien.
Wingate v. Mississippi Securities Company, 152 Miss. 852, 120 So. 176.
Our lien statute in this connection is merely declaratory of the common law liens which usually attach to the property in the possession of the lienor, without reference to ownership and override all other rights in the property.
37 C. J. 327; Broom v. Dale, 109 Miss. 52, 67 So. 659.
When the property is machinery, or property of a character which renders it necessary to intrust it to a mechanic or machinist to make such repairs, the mortgagor in possession will be constituted the agent of the mortgagee to procure the repairs to be made; and as such necessary repairs are for the betterment of the property, and add to its value to the gain of the mortgagee, the common-law lien in favor of the mechanic for the value of the repairs is paramount and superior to the lien of the mortgagee. The mortgagee is presumed, in such case, to have contracted with a knowledge of the law giving to a mechanic a lien.
Broom v. Dale, 109 Miss. 52, 67 So. 659.
The owner of personal property is not required to give notice to innocent purchasers or mechanic's lien men. The rule of caveat emptor as to the ownership and recovery of personal property has long prevailed in this state; so it would make no difference whether the mechanic knew or did not know that the title to the car was in some other person than the one in possession when the repairs were made. Nor does it make any difference whether the owner knew that the repairs were being made on the car, if he authorized them either expressly or impliedly; nor would knowledge be essential, where the repairs were reasonably necessary to preserve the property and permit its ordinary operation, and prevent deterioration.
Harrison v. Broadway Motor Company, 128 Miss. 766, 91 So. 453; U. S. Motor Truck Co. v. Southern Securities Co., 131 Miss. 664, 95 So. 639; Morehead Motor Company v. H. D. Walker Auto Company, 133 Miss. 63.
The Federal Credit Company, appellant instituted a replevin suit for a certain automobile against the appellee, W. H. Holloman, in the circuit court of George county, resulting in a verdict and judgment for the appellee, which judgment was based upon a peremptory instruction granted in favor of the appellee, Holloman.
On October 7, 1931, the Federal Credit Company sold the automobile in controversy to Jack and J. W. Sherrill, on credit, for seven hundred seventy-two dollars, to be paid for at the rate of thirty-nine dollars and thirty-three cents per month for eleven months, and the balance of three hundred thirty-nine dollars and thirty-seven cents in twelve months. There was a conditional sales contract executed in which it was provided that the appellant should retain title to the automobile until the full performance of the contract on the part of the Sherrills. The contract further provided that the Sherrills should keep the car in good repair and discharge any lien thereon. On February 5, 1932, the automobile was partially destroyed by fire, at which time the Sherrills were in default on their monthly payments. The car was insured and on April 23, the Federal Credit Company collected from the insurance company four hundred thirty-five dollars.
At the time of the institution of this suit, there was a balance due by the Sherrills of two hundred thirty-eight dollars and fifty-four cents.
After the burning, the Sherrills exchanged it with the Smith Chevrolet Company for another car; being allowed one hundred...
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