Western States Securities Co. v. Mosher

• Decision Date: 19 June 1925
• Docket Number: Civil 2300
• Citation: 28 Ariz. 420,237 P. 192
• Parties: WESTERN STATES SECURITIES COMPANY, a Corporation, Appellant, v. HATTIE L. MOSHER, Appellee
• Court: Arizona Supreme Court

237 P. 192

28 Ariz. 420

WESTERN STATES SECURITIES COMPANY, a Corporation, Appellant, v. HATTIE L. MOSHER, Appellee

Civil No. 2300

Supreme Court of Arizona

June 19, 1925

APPEAL from a judgment of the Superior Court of the County of Maricopa. Fred C. Struckmeyer, Judge. Judgment reversed and cause remanded with instructions to enter judgment in favor of appellant.

Mr Scott L. Norviel and Messrs. Kibbey, Bennett, Gust & Smith for Appellant.

Messrs Chalmers, Stahl, Fennemore & Longan and Mr. T. G. Nairn, for Appellee.

OPINION

ROSS, J.

This case involves the right of the lessor to claim a landlord's lien upon an automobile brought upon the premises by a tenant as stock in trade and sold therefrom under a conditional sales contract.

The facts in detail are that Eisenhour-Bradley Motor Company, a copartnership, was a subtenant of appellee, Hattie L. Mosher engaged in selling automobiles from the rented premises. On March 9, 1923, a used Cleveland automobile was brought upon the premises by the tenant, where it remained until March 13th, when it was conditionally sold to Fred Jones and R. E. Harrell for $924.07. The purchasers paid $340 cash, and for the balance gave their several notes due at future dates. The conditional sales contract, of the usual form and content, was drawn up between the seller and the purchasers of the car, and, among other things it provided that the title of the car should remain in seller or his assigns until it was fully paid for; and it also empowered the seller or his assigns to take possession of car in default of payment of notes when due. On the day of the sale the Eisenhour-Bradley Motor Company, for a valuable consideration, assigned and transferred the conditional sales contract, the property covered by it, and the notes to the appellant, Western States Securities Company and in said assignment authorized the Securities Company to collect and discharge the debt. The conditional sales contract and the assignment thereof constituted but one instrument, which was, on March 20th, duly recorded in the office of the county recorder of Maricopa county. The car was immediately delivered to Jones and Harrell, who removed it from the premises, and kept it until July 14, 1923, when it was returned to the Eisenhour-Bradley Motor Company for storage, subject to the orders of the Western States Securities Company. When so returned to the premises and into the possession of the Eisenhour-Bradley Motor Company, the lessor of the premises, Hattie L. Mosher, took possession of the car and refused to deliver it to the appellant, claiming she was entitled to a landlord's lien thereon under paragraph 3671 of the Civil Code of 1913.

These, we think, are the material facts.

The Securities Company brought an action in replevin claiming the car as purchaser from the Eisenhour-Bradley Motor Company, and appellee, Mosher, defended under claim of lien for rent. The case was tried to the court without a jury and the judgment entered sustained the claim of landlord's lien, foreclosed it, and ordered the car sold in satisfaction of the rent. The plaintiff appeals.

But one question is presented, and that is the one stated at the beginning of this opinion. The above statute (paragraph 3671) provides that the "landlord shall have a lien on all the property of his tenant not exempt by law, placed upon or used on the leased premises until his rent shall be paid, . . . but no property of any other person, although the same may be found on the premises," is liable for such rent. It is the contention of appellant that it purchased the notes, the conditional sales contract, and the property covered by such contract, when on March 13th the assignment was made by the Eisenhour-Bradley Motor Company to it and that from that day it was the absolute owner of car. The appellee must necessarily contend that the Eisenhour-Bradley Motor Company was the owner of car when in July she seized it for rent, for, under the statute "no property of any other person" than the tenant's is liable for the rent of premises.

Conditional sales contracts of personal property, under which possession is delivered to the buyer and the title reserved in the seller until property is fully paid for, have long been recognized as valid, and our legislature has expressly sanctioned such contracts in the adoption of the Uniform Conditional Sales Act (chapter 40, Laws 1919). Therefore when the Eisenhour-Bradley Motor Company delivered the possession of automobile to Jones and Harrell, it did not part with the title; it remained the owner of the thing conditionally sold, with the right to alienate such property, subject to the right of the buyer to complete his contract of purchase. On the day of sale to Jones and Harrell the Eisenhour-Bradley Motor Company did, in the words of the assignment, "sell, assign, and transfer to the Western States Securities Company its right, title, and interest in and to the within conditional sale agreement, and the property covered thereby, together with notes mentioned therein. . . ." One of the highest prized incidents to the ownership of property is the right to sell it, to convert it...