Howes v. Newcomb

• Decision Date: 10 January 1888
• Citation: 146 Mass. 76,15 N.E. 123
• Parties: HOWES v. NEWCOMB.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

146 Mass. 76

15 N.E. 123

HOWES v. NEWCOMB.

Supreme Judicial Court of Massachusetts, Hampden.

January 10, 1888

COUNSEL

Willmore B. Stone, for plaintiff.

The lien claimed in this case is that created by Pub.St. c. 192 § 32. It did not exist at common law, and can only attach in case the horses in question were placed in the care of the defendant by or with the consent of the owner. Irrespective of the statute condition, a lien on personal property cannot be created without the consent or authority of the owner. Buxton v. Baughan, 6 Car. & P. 674; Globe Works v. Wright, 106 Mass. 207. The only evidence, if any, of consent on the part of the plaintiff, is that to be inferred from the terms of the mortgage itself; and without such consent in the mortgage, express or implied, the defendant cannot maintain a lien against the plaintiff. Hammond v Danielson, 126 Mass. 294; Storms v. Smith, 137 Mass. 201. The decision of this case essentially depends on whether it shall be held to be within the principle of Hammond v. Danielson, supra, or of Storms v. Smith, supra. The terms of the mortgages are similar in the three cases. At common law, it was said that a bailee had a lien on goods bailed to him in those cases only when an additional value had been conferred by him on the chattels, either directly by the exercise of personal labor and skill, or indirectly, by the intermediate use of any instrument over which he had control; and perhaps this is the test to be applied in this class of cases. Jackson v. Cummins, 5 Mees. & W. 342, 3 Jur. 436. See, also, Williams v. Allsup, 10 C.B. (N.S.) 417; The Scio, L.R. 1 Adm. & Ecc. 353, 355. If defendant is not entitled to a lien for the first period mentioned, namely, up to the time when the plaintiff demanded the horses of him, then, as he held them against the will of the plaintiff from that time up to the sixth November, 1886, he cannot maintain a lien for the latter period. Buxton v. Baughan, supra; Globe Works v. Wright, supra; Hollingsworth v. Dow, 19 Pick. 228. If defendant's claim can be sustained in this case, is not all certainty of security in a mortgage of this kind of property destroyed? And is it not in the power of the mortgagor in possession to defeat his mortgagee's claim by substituting, with the connivance of a third person, a claim in preference to it of the full value of the horse? The plaintiff had a right to rely on the notice which the recording of his mortgage gave to all the world, and defendant is charged with knowledge of the mortgage, and took the horse to keep, subject to the claim which plaintiff had. Storms v. Smith, supra. This case is the ordinary case where one unfortunately purchases or receives property from one having no title, and the true owner comes and demands his property of the possessor, and, upon a refusal to deliver, brings his action for the conversion of the property. And, unless the defendant was prepared to impeach the title of the plaintiff, he should have surrendered the horses, and taken his remedies against his bailor. Bissell v. Pearce, 28 N.Y. 252, 259; Sargent v. Usher, 55 N.H. 287, 293.

A.M. Copeland, for defendant.

If the defendant had a lien upon the horse at the time the replevin writ was served, plaintiff cannot prevail. Fowler v. Parsons, 143 Mass. 401, 9 N.E. 799. Thompson's mortgage did not pass to plaintiff the full and complete rights usually acquired by a mortgagee of personal property. There was something more to be done, to-wit, a breach of conditions acted upon by plaintiff. This seems to have been recognized as law in Goodrich v. Willard, 2 Gray, 203. On the facts, as they appear in the bill of exception, the court erred in finding that the plaintiff had the right of immediate possession as against defendant. At the time the mortgage was given, Thompson had no right of possession as against defendant. Thompson never had possession of the horses from the time he first placed them in defendant's care until they were taken by plaintiff's writ. Nor had Thompson the right of possession as against defendant, except at the instant of settlement, May 8, 1886. But the horses remained in the keeping of defendant; so the right was instantly lost again. See Gibbs v. Childs, 143 Mass. 103, 9 N.E. 3. When these horses were placed in the defendant's care and keeping, they were the absolute property of Thompson; they were placed in the defendant's care by the owner, and came within the exact provision of statute. Pub.St. c. 192, § 32. We say this case does not materially differ from the case of Hammond v. Danielson, 126 Mass. 295. In Storms v. Smith, 137 Mass. 201, the court distinguished between that case and Hammond v. Danielson. We think our case comes within the distinction. This mortgage contains a power of sale. Among the provisions for the disposition of the money arising from such a sale is one for discharging "any claim or liens of third parties affecting the same." We cannot conceive for what purpose that provision was made, unless it was contemplated that Thompson might so deal with the property as to subject it to liens, if necessary. For aught we know, it was made in contemplation of this very claim.

OPINION

KNOWLTON J.

The horses sought to be replevied are claimed by the plaintiff under a mortgage of unquestioned validity, and by the defendant under an alleged lien for their board, founded on Pub.St. c. 192, § 32. This section provides that "persons having proper charges due them for pasturing, boarding, or keeping horses or other domestic animals, brought to their premises or placed in their care by or with the consent of the owners thereof, shall have a lien on such horses or other domestic animals for such charges." It creates rights in derogation of the common law, and is to be construed strictly. Rogers v. Currier, 13 Gray, 129. To maintain a lien under it, one must show that he has pastured, boarded, or kept the animals claimed, and that they were brought to his premises or placed in his care by or with the consent of their owner. These are matters of fact, to be established by evidence. The only exception taken was to the refusal to rule, as requested, that the defendant "had a lien upon the horses for their keeping, as against the plaintiff's mortgage, both for the time intervening between the first interview, October 12th, and the date of the plaintiff's writ, November 6, 1886, and also for the whole time he kept them for said Thompson;" and the question is whether the case shows such facts that the judge ought to have made this ruling as a matter of law.

The bill of exceptions does not purport to be a full report of the evidence or facts of the case. It does not even state that it presents all the facts or evidence bearing upon the legal question raised. If we assume what in a case of this kind, in the absence of an express statement, should not ordinarily be assumed in favor of an excepting party, that we have all the facts touching the existence of the lien claimed, can there be no proper interpretation of them other than as creating a lien? The defendant was bound to prove that the horses were brought to his premises or put in his care by or with the consent of the owner. This fact is not found. Are the others which appear in the exceptions equivalent to it in law? Is it impossible properly to draw inferences from the others inconsistent with the existence of this? The mortgagor was not the owner, within the meaning of this statute, but the plaintiff was. It is not contended that the plaintiff expressly agreed to the horses being placed in the defendant's care. But undoubtedly an implied consent will answer the requirements of the law, and in every case of this kind the inquiry is whether such implied consent is found. That depends, where animals are left with a mortgagor by a mortgagee, not only upon the terms of the express contract relating to them, but also...