
    Chapman v. First Nat. Bank of Montgomery.
    
      Action for Money had and Received.
    
    
      1. Statutory lien of lirery-stablemen; priority of former recorded mort-yaye. — The lien given by statute to a livery-stabli keeper, upon stock, for their keep and feed, is subordinate to the lien of a prior recorded mortgage thereon, even though the Jaw-day of the mortgage is past and the stock remain in possession of the mortgagor, when such livery-stable charge is incurred without the consent of tlie mortgagee.
    Appeal from the Circuit Court of Montgomery.
    Tried before the Hon. JOHN E. TysoN.
    This was an action for money had and received, and was brought by the First National Bank of Montgomery against B. E. Chapman at the January Term, 1898; and was tried upon the following agreed statement of facts: “ That on the 81st of August, 1888, E. J. Chambers was indebted to said plaintiff (First Nat. Bk.) in a large sum of money, to-wit, fifteen hundred- dollars ($1,500.00), and to secure the same, executed to the plaintiff a mortgage on certain personal property, including the two mules (the proceeds of the sale of which are involved in this cause), which mortgage was duly recorded in the office of the probate judge of Montgomery county, on tbe 6th of September, 1888, and a copy thereof (setting out the mortgage) is hereto attached as a part hereof. That said Chambers was at that time, and has ever since been, a resident of said county of Montgomery, and said property was owned by him, and was kept in said county of Montgomery; that afterwards, in the year 1890, said Chambers, while, in possession of said mules, put the said stock in the livery stable of John H. Clisby, located at Montgomery, Alabama, where the same were kept and fed by the said Clisby as a livery proprietor, and the said Chambers became justly indebted to the said Clisby for the reasonable feed and keeping of said mules at said livery stable, in the sum of two hundred dollars; that, afterwards, on the 13th of March, 1891, the plaintiff and John H. Clisby each claiming to have the prior lien upon said mules, with the consent of R. J. Chambers, the mortgagor, entered into an agreement in writing, by which it was agreed that the mules were to be sold by the defendant, Chapman, and the proceeds held by him for the benefit of whichsoever party should be held to be entitled to the same; that on the 18th day of March, 1891, the said Chapman sold the said two mules and received therefor the sum of two hundred dollars, which he now holds in his possession, to be paid the plaintiff, or to John H. Clisby according as it may be determined which of said parties had the superior lien on said property at the time of the sale of said mules, under said agreement.”
    This being all the evidence, the plaintiff asked the court to give to the jury the following written charge, viz: “If the jury believe all the evidence in this case, they must find for the plaintiff;” which was given. To the giving of said charge the defendant duly excepted, and asked the court to give to the jury the following written charge : “If the jury believe all the evidence in this case, they must find for the defendant.” The court refused to give this charge, and the defendant excepted.
    Judgment was for the plaintiff. Defendant appeals and assigns as error the ruling of the court on said charges.
    A. A. Wiley, for appellant,
    cited Hammond v. Danielson, 126 Mass. 294; Oolquitt v. Kirlcman, 47 Ga. 555; Smith v. Stevens, 36 Minn. 303; Gase v. Allen, 21 Kansas, 217-20; Code of Ala. § 3089; Johnson v. Hill, 3 Starkie, 172 ; Williams v. Allsup, 100 Eng. C. L., 416; Hermon on Chattel Mortgages, 308; Brown v. Holmes, 13 Kansas, 492; The St. Josepli, 1 Brown Adm’r, 202; The Granite State, 1 Sprague, 277; Don
      nell v. The Starlight, 103 Mass., 227-33; Jones’Chattel Mortgages, §§ 473-5; Laird v. Muonan, 32 Minn., 358; Scaife v. Stoval, 67 Ala. 237; Toivnsend v. Brooks, 76 Ala. 311.
    Tompkins & Troy, for appellee,
    cited Code of 1886, §§ 389, 390; Bissell v. Pearce, 28 N. Y., 252 ; Jones on Liens, § 691,
   HARALSON, J.

Tbe only ‘question presented by this record is, lias tbe statutory lien of a livery-stable keeper, given by § 3089 of tbe Code, for tbe keeping and feeding of stock, precedence over a mortgage on tbe animals previously given by tbeir owner, — tbe law-day of tbe mortgage having past and tbe animals remaining in the possession of tbe mortgagor. That section reads, “Any keeper, owner or proprietor of a livery stable, shall have a lien on all stock kept and fed by him, for tbe payment for bis charges for keeping and feeding such stock, and be shall have tbe right to retain tbe stock, or so much thereof as may be necessary, for tbe payment of such charges.”

This question is an undecided one in this State, and there is a conflict in tbe authorities on it.

Mr. Jones, in bis work on liens, with these conflicting authorities before him, says, “A chattel mortgage upon a horse is superior to a subsequent lien of a livery stable keeper, where tbe horse is placed in tbe stable by tbe mortgagor after tbe making of tbe mortgage, without tbe knowledge of tbe mortgagee,” and as reasons leading to this conclusion, be adds, “It is not to be supposed, that a statute giving a lien for tbe keeping of animals was intended to violate fundamental rights of property, by enabling tbe possessor to create a lien without tbe consent of tbe mortgagee, when tbe person in possession could confer no rights as against tbe mortgagee by a sale of tbe animals. Tbe keeper of animals entrusted to him by tbe mortgagor, undoubtedly acquires a lien as against tbe mortgagor, but it is a lien only upon such interest in them as tbe mortgagor bad, at tbe time, and not a lien as against tbe mortgagee, between whom and the keeper of the animals, there is no privity of contract. Tbe mortgagor, though in possession, is in no sense the mortagee’s agent, nor does be sustain to tbe mortgagee any relations, which authorize him to contract any liability cin bis behalf. Tbe statute can not be construed to authorize tbe mortgagor to subject tbe mortgagee’s interest to a lien, without bis knowledge or consent, as security for a liability of tbe mortgagor, unless such a construction clearly appears from tbe language of tbe statute to be unavoidable.”

In support of these views, he cites Jackson v. Kasseall, 30 Hun. N. Y., 231; Bissell v. Pearce, 28 N. Y., 252; Charles v. Neigelson, 15 Ill., App. 17; Sargent v. Usher, 55 N. H., 287; State Bank v. Lowe, 22 Neb. 68; Easter v. Goyne, 51 Ark. 222; McCreary v. Gaines, 55 Tex. 485; Small v. Robinson, 69 Me. 425; Jones on C. Mortgages, § 474.

Tbe contrary construction, sustained by respectable authority, proceeds upon tbe idea, that tbe animals must be preserved, and that their preservation enures to tbe benefit of tbe mortgagee; that tbe lien is of statutory creation, purely, and a mortgage executed while tbe statute is of force, is taken in subordination' thereof, and is subject to such statute, as a general rule of law that a mortgagee, when be takes a mortgage, takes it, in legal contemplation, with full knowledge of and subject to tbe rights of a person who may keep tbe property at tbe request of tb.e mortgagor or other lawful possessor, under the statutory lien, as be would do, to a common law lien.—Hammond v. Danielson, 126 Mass., 294; Colquitt v. Kirkman, 47 Ga. 555; Smith v. Stephens, 36 Minn. 303; Case v. Allen, 21 Kansas, 217-20; Williams v. Allsup, 10 C. B. N. S., 417; The Granite State, 1 Sprague 277.

It is for us to determine, which of these conflicting views is more consonant with reason and tbe policy of our own statutes. Thus aided, we may tbe more readily arrive at tbe intention of tbe legislature, in the creation of this statutory lien. Our registration laws proceed upon tbe idea, that no one with notice of a mortgage on personal property, bad tbe right to deal with it, in any wise, to tbe prejudice of tbe mortgagee ; and that, with knowledge or notice of tbe existence of tbe mortgage, he can acquire no rights in or title to tbe property mortgaged, which are not in subordination to those of tbe mortgagor; and we can perceive no reason, in tbe absence of a provision of tbe statute to that effect, to exempt a livery stable keeper, more than any other person, from tbe force and effect of our registration laws. It is not for us to give these statutes any such construction, unless we are constrained to do so, by tbe manifest intention of tbe legislature. These laws are of universal and unvarying application to all persons and classes, not specially exempted by statute. — Code, § 1814. Accordingly, we have held, that tbe due registration of a mortgage on personal property, is constructive notice to those who deal with tbe property, as binding on them as actual notice would be ; (Hudmon v. DuBose, 85 Ala. 446; Heflin v. Slay, 78 Ala. 180; Mayer v. Taylor, 69 Ala. 403.) And that a factor or commission merchant, — for instance, — receiving and- selling cotton for a mortgagor, without actual notice of the mortgage, is liable in trover to the mortgagee, if the mortgage has been properly recorded in the county in which the cotton was raised.—Marks v. Robinson, 82 Ala. 70; Hudmon v. DuBose, supra.

It will hardly be contended, that if the mortgagor, when he took the animals mortgaged, to the livery stable keeper, had notified him that the plaintiff held a mortgage on them, to secure a debt which he owed, the stable kee'per would have been justified and protected, under our statute and decisions, in taking them into his charge and keeping, to the prejudice of the plaintiff; and yet, the registration of plaintiff ’s mortgage was as effective as actual knowledge of plaintiff ’s rights and interests in the premises.

The legislature, in the creation of this lien, did it, we must presume, with reference to our registration statutes, and the general policy of our law for the protection of mortgagees of personal property. In the adoption of the statute, it gave no preference or priority of lien over mortgages or incum-brances.

The court below did not err in giving the general charge for the plaintiff, and in refusing a like charge for the defendant.

Affirmed.  