Garr v. Clements
| Decision Date | 05 February 1895 |
| Docket Number | 6731 |
| Citation | 62 N.W. 640,4 N.D. 559 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Pembina County, Lauder, J.
Action in claim and delivery by Garr, Scott & Co. against W. B Clements. Defendant had judgment, and plaintiffs appeal.
Affirmed.
Young & Monnet, for appellant.
The mechanic's lien law of 1890 under which the defendant claims ownership is unconstitutional. Getchell v Allen, 34 Ia. 559; Equitable Life Insurance Co. v Slye, 45 Ia. 615; Meyer v. Berlandi, 40 N.W 513; Dennison v. Shuler, 11 N.W. 402; Laird v. Noonan, 20 N.W. 354.
Wm. J. Kneeshaw and M. Brynjolfson, for respondent.
The mechanic's lien law of 1890 was in force when the mortgage in question was executed by defendant, and the mortgage was taken with reference to the statutory law in force in the jurisdiction at the time it was made. Cobby on Chat. Mtgs., 463, 466; Smith v. Stevens, 31 N.W. 55; Conning v. Ashley, 4 N.Y.S. 255. The laws which subsist at the time and place of making a contract and where it is to be performed, enter into and form a part of it as if they were expressly referred to and incorporated in its terms. 3 Am. and Eng. Enc. Law, 751; Von Hoffman v. Quincy, 4 Wall. 535. A seed lien can be given priority over a chattel mortgage executed subsequent to the passage of the act. Joslyn v. Smith, 49 N.W. 382, 2 N.D. 53.
The object of this action was to recover the possession of a threshing engine. The defendant was successful in the trial court. He there obtained judgment for the return to him of the property in question, the plaintiffs having taken it under claim and delivery proceedings in the action. The plaintiffs claimed the right to the possession of the engine under a mortgage thereon executed and delivered to them by Daniels & Sullivan, to whom the plaintiffs had sold the property; the mortgage having been given to secure the purchase price thereof. This mortgage was filed in the proper office. Subsequently the defendant, who was a mechanic boiler maker, and engineer, at the request of Daniels & Sullivan, reflued the boiler of the engine. His reasonable charges therefor were not paid. Claiming a lien under the statute (Laws 1890, Ch. 88,) he took the necessary steps to perfect such lien, and then foreclosed the same, and on the sale bought in the property. It is on this title that he rests his defense. The plaintiffs have, under the terms of their chattel mortgage, an undoubted right to the possession of the engine, unless the sale on foreclosure of defendant's lien destroyed the lien of such chattel mortgage. Whether such sale had this effect depends on the priority of defendant's lien for the repairing of the engine. The statute under which defendant claims such priority provides as follows, so far as the question of priority is concerned: "Said lien shall have priority over all other liens or incumbrances upon said threshing engine or separator created subsequent to the passage and approval of this act, if filed within ten days from the day upon which said labor was performed or materials were furnished." See Laws 1890, Ch. 88, § 2. It is undisputed that defendant filed his lien within the statutory time. It cannot admit of doubt that the statute in terms made such a lien superior to a chattel mortgage on the property at the time the property is repaired, provided the mortgage was executed after the law took effect. The mortgage in this case was executed after this law was enacted. Hence it is obvious that, if the statute is to stand as it reads, defendant's lien was prior to that of the mortgage, and his title to the property derived from the foreclosure of that lien would therefore be unincumbered by such mortgage. But the plaintiff's assail as unconstitutional that portion of the law which gives such a lien priority over a mortgage on the property, executed, delivered, and filed before the lien was created. It is urged that there is only one ground on which a lien can lawfully be given such priority, and that that is the implied assent of the mortgagee to the creation of the lien. It is contended that, unless the owner can be regarded as the agent of the mortgagee for that purpose, his rights cannot be impaired by anything the owner may do. We will assume this position to be sound, but we are unable to deduce from it the conclusion that the statute is unconstitutional. This statute, in legal effect, informs every mortgagee in every mortgage thereafter executed that by leaving the mortgaged property in the possession of the owner he thereby makes the owner his agent for the purpose of having necessary repairs made, the cost of which will be a first lien upon the property. Such agency has been implied from the circumstances of the case, and priority of lien given to the one who has made the repairs, without any statute giving his lien priority, or giving him a lien at all, where the circumstances are very similar to those which characterize this case. Williams v. Allsup, 10 C. B. (N. S.) 417; Hammond v. Danielson, 126 Mass. 294; Watts v. Sweeney, 127 Ind. 116, 26 N.E. 680; Scott v. Delahunt, 5 Lans. 372, on appeal; 65 N.Y. 128; Herm. Chat. Mortg. p. 308; Jones, Chat. Mortg. § § 474, 535; Browne, Civ. & Adm. Law, p. 204; Jones, Liens, § 744. See, also, Meyer v. Berlandi, 38 Minn. 438, 40 N.W. 513, 516; White v. Smith, 44 N.J.L. 105. So far from being a radical departure from the course of the common law, this statute appears to us to be in perfect harmony with common law principles. It in terms declares a priority which the common law gave under facts similar to the facts of this case. Should such priority be given by statute to a livery stable keeper or an agister, an innovation would be made, for at common law neither had any lien whatever in the absence of an express contract for a lien. But it by no means follows that such a statute would be void because it created a lien, and gave it priority in cases where the common law recognized no lien whatever. However this may be, there is a marked difference between the mere feeding of stock, which in no way augments their value, and the repairing of a defective article of personal property, which directly adds to its value. It was because of this difference that the common law gave a lien in the latter case and withheld it in the former. The refluing of a leaky boiler is as much a benefit to the mortgagee thereof as to the owner. It increases the value of the property, and enables the owner to earn by use of the same the money with which to discharge the mortgage lien. By leaving the property in the possession of the owners, the mortgagee in this case must be deemed to have assented to the making of the necessary repairs, and to have, therefore, bound their mortgage interest by the lien which both the common law and the statute gave to the mechanics who did the work and...
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