Turner v. Horton

• Decision Date: 07 February 1910
• Docket Number: 602
• Citation: 106 P. 688,18 Wyo. 281
• Parties: TURNER ET AL. v. HORTON ET AL
• Court: Wyoming Supreme Court

106 P. 688

18 Wyo. 281

TURNER ET AL. v. HORTON ET AL

No. 602

Supreme Court of Wyoming

February 7, 1910

ERROR to the District Court, Carbon County, HON. DAVID H. CRAIG Judge.

Action in replevin. Judgment was for defendants, and plaintiffs prosecuted error. The facts are stated in the opinion.

Judgment affirmed.

L. E Armstrong, and Chris. Mathison, for plaintiffs in error.

The plaintiffs below, plaintiffs in error here, claim laborers' liens under Sections 2857, 2858 and 2859 Revised Statutes of 1899. The plaintiffs claimed and here claim the right to seize and sell the property in controversy, and to have possession thereof, for the purpose of foreclosing their several concurrent liens. The statutory lien laws create both a right and a remedy. (27 Cyc., 19 20.) Although a part of the lien law may be unconstitutional, the remainder, if separable, may be valid. (N. E. &c. Co. v. Oakwood &c. Co., 75 F. 172.) A court of equity will enforce statutory liens where no other method of enforcement is provided. (25 Cyc. 682.) And if no valid method is provided it is the same as if no method had been provided at all. The statute giving the right to seize, that is to say, to resume possession of the wood for the purpose of enforcing the lien, if the laborer be advised that the statutory method of foreclosing is unconstitutional, he may go into equity. If the property subject to the lien is taken and sold by one who has converted it, the lienor must proceed in equity to fix his right to the proceeds in the hands of the wrong doer. (Judge v. Curtis, 72 Ark. 132.) The plaintiffs are entitled to possession for the purpose of foreclosing, no matter what method of foreclosure they may adopt. A lien law like the one under consideration, even though it does not provide for possession or record, is not unconstitutional. (Rankin v. Scott, 12 Wheat. 177; Reilly v. Stephenson, (Mich.) 29 N.W. 99; Shaw v. Bradley, (Mich.) 26 N.W. 331.) A mariner's lien has no analogy to common law liens with respect to possession. (The Mary, Fed. Cas. No. 9186.)

Sections 2857 and 2859 create a lien either expressly or by the plainest implication. The lien so created is statutory and possession is not necessary. The lien is good as against all but innocent or bona fide purchasers, and cannot be lost by the lapse of time short of the statutory time as to mortgages. There is nothing in the evidence to show a waiver, loss, release, abandonment or forfeiture of the lien. The fact that some of the lienors may have taken security for their claims does not discharge their liens unless that was the express agreement of the parties, or their agreement had that effect. When it is said that statutory liens will only be extended to cases expressly provided for by the statutes, it is only meant that liens are not given on classes of property other than those enumerated therein. (27 Cyc. 20.) A statute need not in specific or express language provide a lien. (25 Cyc. 662, 663; the Menominie, 36 F. 197.) Statutes creating liens are to be construed so as to be effective, if possible. (4 Cur. Law, 435; 6 Cur. Law, 455; Krotz v. Lmbr. Co., (Ind.) 73 N.E. 275; T. R. Co. v. Shera, (Ind.) 73 N.E. 293; Mott v. Min. Co., 135 F. 697.) The provision of Section 2858 that the lien may be maintained upon property owned and held by the debtor shows that possession in the lien claimant is not necessary to the existence of the lien. The lien as thus defined is different from the common law lien, which is dependent upon possession. The very nature of the labor in cutting and hauling timber prevented, at common law, the possession which was necessary to a lien. Under our statute concurrent liens do not depend upon their being established by the same act, for all liens are concurrent. The provision that the lien claims mentioned in the statute shall be concurrent liens is to be construed as expressly providing for the liens. (Mott v. Min. Co., 135 F. 697; In re. Lumber Co., 112 F. 759.) The words "lien claims" as used in Section 2857 are equivalent to "claim" or "demand." (25 Cyc. 681; Stone v. Browning, 49 Barb. 244.) The effect of the statute is the same as though it read "lien or claim." (25 Cyc. 681; Ellerson v. State, 69 Ala. 1.) A statutory lien attaching to personal chattels, although no possession of them be delivered, has the same operation and efficacy as at common law, where possession accompanied or followed the deed creating the lien. (Beall v. White, 94 U.S. 382.)

The only aim of our statutes is the protection of bona fide and innocent purchasers. Attaching creditors are not bona fide and innocent purchasers. They take only the actual interest of the debtor. (Frank v. Hicks, 4 Wyo. 514; Bank v. Cook, 12 Wyo. 492; Story's Eq. Jur., Secs. 64c, 381, 1502; Vatier v. Hynde, 7 Peters, 252; Boone v. Chiles, 10 Peters, 177.) The liens of the plaintiffs are superior to an attachment lien. (5 Cent. Dig., Col. 1088, 1091; 24 id., Col. 2366, 2367.) The lien arises at once upon the doing of the work. (Viles v. Green (Wis.) 64 N.W. 856; Smith v. Greenop, (Mich.) 26 N.W. 832.) The right to lien on property out of possession depends on the statute. (2 Cur. Law, 56.) As illustrating the difference between statutory liens we cite Villenuve v. Symes, (Mich.) 52 N.W. 1008; Babca v. Eldrid, 47 Wis. 189. Custody not being essential to the preservation of a lien it is not dissolved by a sale. (Young v. Kimball, 23 Pa. 193; Husbands v. Jones, 72 Ky. 218; Rankin v. Scott, 12 Wheat. 177; 25 Cyc. 676; Coggshall v. Bank, 57 N.E. 1086.)

The lienors have such special interest in the property that they are entitled to maintain replevin. (Currier v. Ford, 26 Ill. 488; Shinn on Replevin, Secs. 207-214.) The fact that the whole of the property was advertised for sale on execution without reference to the liens entitles the plaintiffs to possession. (Shinn on Repl., Sec. 207, citing Wheeler v. McFarlane, 10 Wend. 318.) Any fact may be proven which establishes the right of possession, under the general allegation that the plaintiffs are entitled to immediate possession. (Schlessinger v. Cook, 9 Wyo. 256.) Previous demand was not necessary. (Boswell v. Bank, 16 Wyo. 161)

The statutory procedure for enforcing the lien is valid. (25 Cyc., 683; Paine v. Gill, 15 Wis. 561.) Waiver, loss, release, abandonment or forfeiture will not be presumed in the absence of evidence clearly tending to show it. (Muench v. Bank, 11 Mo.App. 144.) There was no evidence as to the value of the property and therefore no authority for entering a judgment for the value. (Gordon v. Little, 41 Neb. 250; Ascher v. Schaefer, 25 Mo.App. 1; Hogan v. Peterson, 8 Wyo. 564; Hainer v. Lee, 8 N.W. 888; Romberg v. Hughes, (Neb.) 26 N.W. 351; Archer v. Long, 32 S.C. 171; Hewson v. Saffin, 7 Ohio 232; Wolf v. Meyer, 12 O. St. 432; Bath v. Ingersoll, 1 Wyo. 281; Tucker v. Parks, (Colo.) 1 P. 527; Goldsmith v. Willson, 25 N.W. 870; Martin v. Hertz, 79 N.E. 558; Traction Co. v. Bick, (Ind.) 81 N.E. 617; Campbell v. Bank, (Ida.) 88 P. 639; Nolan v. Sevine, (Tex.) 81 S.W. 990; 3 Minn. 134; Jenkins v. Steanka, 19 Wis. 126.) The judgment against the sureties was unauthorized and therefore erroneous. (Lininger v. Raymond, (Neb.) 2 N.W. 359; Sweeney v. Lonne, 89 U.S. 208; Lauchheimer v. Jacobs, 55 S.E. 55.)

McMicken & Blydenburgh, for defendants in error.

There is no lien such as claimed by the plaintiffs given by any statute in this State, and whatever lien, if any, that the labor of the plaintiffs entitled them to, it can be a possessory lien only. A court of equity may enforce an equitable lien, but a statutory lien is in its nature legal rather than equitable. (1 Jones on Liens, Secs. 94, 112.) We do not contend that the statutory procedure for enforcing the lien given for labor bestowed upon personal property is in itself unconstitutional, but if the lien given by the statute should be held not dependent upon possession, then we contend that the statutory procedure would be unconstitutional as to property not in the possession of the lien claimant. Believing that the procedure would be unconstitutional if the lien claimant was not required to have possession in order to establish and continue his lien, the intention of the Legislature to create a lien dependent upon possession is clear, not only from the language of the statute creating the lien, but from the nature of the procedure for enforcing it. In a proceeding to enforce an equitable lien the claimant would have no right to the possession, but the procedure would be to have the property sold and the proceeds distributed. The sections of the statute upon which plaintiffs rely do not declare a lien. A seamen's lien is in the nature of a possessory lien. He has it so long as he remains on the ship, and when he departs the lien is lost, and so in the case of a logger's lien under our statute, if there is any such lien. It is lost when the laborer abandons possession. (Fein v. Trust & Loan Co., 3 Wyo. 332.) By taking security some of the plaintiffs abandoned their lien, if they had any, the evidence showing that such was the intention.

The statute creating a lien must be strictly construed as in derogation of the common law, while that portion of it relative to the procedure for enforcing the lien may be liberally construed. Our statutes with reference to this class of liens were intended from the enactment of the first statute to be mere possessory liens. The allegation of value in the petition was a material one, and since it was not denied it became a conceded fact in the case and was sufficient to support the assessment of damages.

From an examination of the cases where similar proceedings have been authorized for the foreclosure of liens of this character, it will be found that such proceedings have...