Opinion
No. 36555.
January 12, 1948. Suggestion of Error Overruled, February 9, 1948.
1. CHATTEL MORTGAGES.
Notice to garage owner by holder of deed of trust on truck that its property would not be responsible for repairs made on truck at request of truck owner without a written order from holder therefor did not affect garage owner's right to possession of truck after truck owner delivered truck to garage owner as security for repair bills, particularly where garage owner was unaware of holder's lien (Code 1942, sec. 353).
2. AUTOMOBILES.
Garage owner's delivery of possession of truck to truck owner without collecting repair charges did not deprive garage owner of lien except as against one deriving title or possession through truck owner (Code 1942, sec. 337).
3. CHATTEL MORTGAGES.
Where assignee of deed of trust on truck was not in possession of truck, and deed was not foreclosed and no breach of condition thereof appeared, title to truck did not vest in assignee under the deed of trust and lien of deed had no priority over mechanic's lien (Code 1942, secs. 337, 353, 355, 849).
4. CHATTEL MORTGAGES.
Where deed of trust was not foreclosed but a settlement was had between assignee and debtor under which property other than truck was delivered to assignee and truck was delivered by debtor to garage owner as security for repair bills, and prior to the settlement debtor advised assignee that he owed a garage bill against the truck, garage owner's claim that he had a mechanic's lien was a good defense to replevin action by assignee (Code 1942, secs. 337, 353, 355, 849).
APPEAL from the Circuit Court of Lauderdale County.
Edwin A. Dunn, of Meridian, for appellant.
As to the items of labor and the material furnished subsequent to the execution of the deed of trust held by the appellee, the mechanic's lien would unquestionably be paramount to the lien of the deed of trust, since it was shown without dispute that the labor done and the materials furnished were necessary to permit the operation and to prevent the deterioration of the property in question.
J.A. Broom Son v. S.S. Dale Sons, 109 Miss. 52, 67 So. 659, L.R.A. 1915D, 1146; Moorhead Motor Co. v. H.D. Walker Auto Co., 133 Miss. 63, 97 So. 486; Hollis v. Isbell, 124 Miss. 799, 87 So. 273, 20 A.L.R. 244; Harrison v. Broadway Motor Co., 128 Miss. 766, 91 So. 453; U.S. Motor Truck Co. v. Southern Securities Co., 131 Miss. 664, 95 So. 639; Billups v. Becker's Welding Machine Co., 186 Miss. 41, 189 So. 526; In re Monticello Veneer Co., 2 F. Supp. 27, 22 Am. Bankr. (N.S.) 249; Watts v. Sweeny, 127 Ind. 116, 26 N.E. 680, 22 Am. St. Rep. 615; Drummond Carriage Co. v. Mills, 54 Neb. 417, 74 N.W. 966, 40 L.R.A. 761, 69 Am. St. Rep. 719; Grinnell v. Cook, 3 Hill (N.Y.) 491, 38 Am. Dec. 663; Williams v. Allsup, 10 C.V. (N.A.) 417; 3 R.C.L. 56.
S.M. Graham, of Meridian, for appellee.
Appellant cannot bind this truck in suit with a mechanic's lien in the face of the positive warning from the beneficial owner of the property not to repair same without a work order from the beneficial owner first authorizing such repairs. Since appellant admits that he had no work order and did not deny the notice not to repair without a work order, he is bound thereby as well as by his acts in delivering possession of this truck to Carl McNeil after the repairs were made and allowing it to be sold to appellee, Sam Broadhead, on November 8, 1945, without any notice of the liens claimed herein. Otherwise the beneficial owner of personal property has no way on earth to protect himself against the loss thereof to a mechanic who has been sufficiently warned by the beneficial owner, and makes the ownership of private property of very little value.
Billups et al. v. Becker's Welding Machine Co., 186 Miss. 41, 189 So. 526; Code of 1942, Secs. 337, 355.
The appellee sued out a writ of replevin in the County Court against the appellant for the recovery of an automobile truck. When the truck was levied on under the writ the appellant failed to execute a bond therefor, and such a bond was executed by, and the truck delivered to, the appellee. The appellant's defense to the action was that he had a mechanic's lien on the truck under Section 353, Code 1942, for necessary repairs made thereon at the request of the owner of the truck. The truck was owned by Carl McNeil, but he had given a deed of trust thereon, along with other property, to Dixie Planing Mill. Before the repairs were made the appellant was advised by the Dixie Planing Mill that it would pay no repair bills incurred by McNeil without a previous written order therefor from it, and that its property would not be responsible for such bills. The repairs on this truck were made at intervals between and including March 3d and August 21, 1945. Each time repairs were made on the truck it was delivered to and taken away by McNeil without payment of the appellant's charges therefor. After these repairs were made the Dixie Planing Mill assigned its deed of trust on this truck to the appellee. This deed of trust was not foreclosed, but in January, 1946, a settlement was had between the appellee and McNeil under which the property covered by the deed of trust, other than the truck here in question, was delivered to the appellee. The truck here in question was then delivered by McNeil to the appellant to be held by him as security for his repair bills. The day before this settlement was made McNeil advised the appellee that he "owed a garage bill" on this truck. The case was tried in the County Court by the judge thereof without a jury and a judgment was rendered for the defendant, the appellant here, but on appeal to the Circuit Court that judgment was reversed and the appellee, the plaintiff in the County Court, was permitted to retain the truck.
The notice given the appellant by the Dixie Planing Mill that its property would not be responsible for repairs made thereon at the request of McNeil without a written order from it therefor, is of no efficacy here, one sufficient reason therefor being that this truck was not its property, it simply had a lien thereon, of which lien moreover the appellant was unaware, assuming for the purpose of the argument that his knowledge thereof would be material.
That the appellant had given McNeil possession of the truck without collecting his repair charges therefor did not result under Section 355, Code 1942, in his losing his lien thereon, except as against "one deriving title or possession through" McNeil, the owner of the truck. Section 337, Code 1942. The appellee was not in possession of the truck, and title thereto did not vest in him under the deed of trust executed to the Dixie Planing Mill and assigned to him, for it was not foreclosed and no breach of the condition thereof appears from the evidence. Section 849, Code 1942, Buck v. Payne, 52 Miss. 271. This deed of trust therefore gave him no priority over the appellant's mechanic's lien. Billups v. Becker's Welding Machine Co, 186 Miss. 41, 189 So. 526, relied on by the appellee is not a precedent here, within the rule of stare decisis, for whether or not the deed of trust there under consideration conferred on its holder title to the property covered by the deed of trust was not there discussed or decided. The case was presented to the Court by counsel and decided by it on the assumption that the deed of trust there involved had priority over the claimed mechanic's lien unless the holder thereof had notice of the lien when she obtained the deed of trust. 21 C.J.S., Courts, Sec. 209; Aetna Ins. Co. v. Commander et al., 169 Miss. 847, 153 So. 877; Thomas v. State, 117 Miss. 532, 78 So. 147, Ann. Cas. 1918E, 371; Black's Law of Judicial Precedents, Secs. 8 and 10. Cf. Hart v. Chemical National Bank (Miss.), 27 So. 926.
As hereinbefore stated, possession of the truck was not delivered to the appellee under the settlement between him and McNeil in January 1946, but was delivered by McNeil to the appellant, and moreover before the settlement was made McNeil advised appellee "that he owed a garage bill against the truck." The Court below should have affirmed the County Court's judgment, consequently its judgment will be reversed and set aside and the judgment of the County Court will be affirmed.
Reversed and judgment here for the appellant.