Gathman v. First Am. Indian Land, Inc.

• Decision Date: 04 January 1965
• Docket Number: No. 7523,7523
• Citation: 1965 NMSC 3,398 P.2d 57,74 N.M. 729
• Parties: Walter A. GATHMAN and Earl L. Mayne, Plaintiffs-Appellees, v. FIRST AMERICAN INDIAN LAND, INC., a New Mexico Corporation, Defendant, Research Park, Inc., Respondent-Appellant.
• Court: New Mexico Supreme Court

Page 57

398 P.2d 57

74 N.M. 729

Walter A. GATHMAN and Earl L. Mayne, Plaintiffs-Appellees, v. FIRST AMERICAN INDIAN LAND, INC., a New Mexico Corporation Defendant Research Park, Inc., Respondent-Appellant.

No. 7523.

Supreme Court of New Mexico.

Jan. 4, 1965.

McAtee, Toulouse, Marchiondo, Ruud & Gallagher, Mary C. Walters, Albuquerque, for appellant.

Craig Morton, Jr., Albuquerque, for appellees.

COMPTON, Justice.

This appeal involves the right of priority between a judgment lien and a landlord's lien.

There is no material dispute concerning the facts. Appellees recovered judgment February 7, 1962 against First American Indian Land, Inc. for architectural services rendered by them. Execution thereon was issued February 13, 1962, and, on February 16, 1962, the sheriff levied upon and took possession of certain chattels, the property of First American Indian Land, Inc., located upon premises then leased by it from Research Park, Inc.

At this stage of the proceedings, it was brought to the attention of the appellees that the respondent, Research Park, Inc., was claiming a landlord's lien upon the chattels so levied upon, and that Research Park, Inc. was interfering with the sheriff in making sale of the chattels. Appellees then moved for, and were granted, an order directing Reserach Park, Inc. to show cause, if any, why it should not cease interference with the sheriff's sale.

At a hearing on the motion, the following facts appear as found by the court. On April 15, 1961, Research Park, Inc. had entered into a ten-year lease agreement in writing with First American Incian Land, Inc. covering the premises upon which the chattels in question were situated with rentals payable monthly. In September 1961, rentals under the terms of the lease became delinquent and, on April 16, 1962, Research Park, Inc. instituted a forcible entry and detainer action against First American Indian Land, Inc. Subsequently, on May 4, 1962, Research Park, Inc. filed an amended complaint asserting a landlord's lien upon the chattels for the rentals due and sought its foreclosure.

The court concluded that that the execution lien was paramount and was entitled to priority over the landlord's lien. Accordingly, the show cause order was made permanent, and Research Aprk, Inc. has appealed.

Appellant maintains that it is in a favored position by reason of the landlord's lien for rentals due and to become due. Conversely, appellees contend that they perfected their lien long prior to the filing of the landlord's suit.

We think appellant's position is sound. The landlord's statutory lien attached at the begining of the tenancy for rental due or to become due under the terms of the lease with First American Indian Land, Inc., Sec. 61-3-4, N.M.S.A., 1953. Compare Sylvanus v. Pruett, 36 N.M. 112, 9 P.2d 142; Tomson v. Lerner, 37 N.W. 546, 25 P.2d 209, 96 A.L.R. 246; United States v. Lawler, 201 Va. 686, 112 S.e.2d 921; Universal C. I. T. Credit Corporation v. Parker, 117 So.2d 660 (La.App.1960); Elmira Corporation v. Bulman, 135 A.2d 645 (D.C.MunApp.1957); Dewar v. Hangans, 61 Ariz. 201, 146 P.2d 208, 151 A.L.R. 673. See also 52 C.J.S. Landlord and Tenant Sec. 623.

But appellees insist that the following statutes are controlling:

'61-3-8. Priorities between liens.--The priorities of liens provided for by this act [61-3-1 to 61-3-13] shall be fixed as to several lien claimants as of the time of serving notice or of filing suit as provided in section 3343 [61-3-11].'

'61-3-11. Enforcement of liens--Optional methods.--In order to enforce any lien under this act (61-3-1 to 61-3-13) the procedure shall be the same as in case of the foreclosure of a chattel mortgage if suit be filed in court. The lien claimant when the property subject to the lien is under his control or in his possession may, after the debt for which the lien is claimed becomes due and payable, serve the person or persons against whom the lien is sought to be enforced with a written notice or forward to the last known address of such person, by registered mail, a written statement, setting forth an itemized statement of the amount of the indebtedness, and if the same be not paid within ten days after the service of said notice the property may be advertised by posting or publication as hereinafter provided, and sold to satisfy the indebtedness.'

They claim that the phrase 'by this act shall be fixed as to several lien claimants,' means all lien claimants, including judgment liens. We do not so construe the statute. Clearly, the act referred to is composed of Secs. 61-3-1 through 61-3-13, N.M.S.A., 1953, and provides for a variety of liens, including landlord's liens; however, judgment liens are not mentioned therein. See ...