
    Corning v. Ashley et al.
    
    
      (Supreme Court, General Term, Third Department.
    
    February 7, 1889.)
    1. Agistment—Lien—Owner of Animals—Mortgagor.
    Laws N. T. 1872, c. 498, § 1, as amended by Laws 1880, c. 145, provides that a person keeping any animals at livery or pasture, or boarding the same, for hire, under any agreement with the owner thereof, may detain such animals until all charges for their keeping shall have been paid. Held, that a mortgagor of certain horses, who, after having defaulted, in the performance of the conditions of the mortgage, but being still in the possession of the horses, entered into an agreement with the plaintiff for their keeping, was an “owner” of the horses, within the meaning of the statute.
    2. Same—Priority of Lien.
    Such statute having been in force when the mortgage in question was executed to defendant, and the required notice of the lien arising under such statute and agreement having been given to the mortgagee, such lien took precedence over the mortgage.
    8. Same—Enforcement of Lien.
    The fact that plaintiff had a mortgage interest in the horses by the terms of the same instrument under which defendant claimed as mortgagee, did not deprive plaintiff of the right to enforce his agister’s lien as against defendant, where the rights of the latter were superior to those of plaintiff under the mortgage.
    Appeal from special term, Albany county.
    Action by Erastus Corning against Leurendus B. Ashley and others. Judgment was given for plaintiff, and the defendants appeal.
    Argued before Learned, P. J., and Landon and Ingalls, JJ.
    
      Morgan & French, for appellants. Clifford D. Gregory and. Matthew Hale, for respondent.
   Learned, P. J.

On the 11th day of September, 1884, Huntington, one of defendants, executed a mortgage on the horses in question, and other horses owned by him, to Ashley, Reynolds, and Freeman, other of the defendants, and to Corning, the plaintiff. This mortgage was, first, to secure Ashley in one year $3,120.35, and, after paying Ashley, then to pay in one year whatever he might owe the others above named. Only about $122 has been paid Ashley. On the 1st of November, 1885, Huntington sent some of the horses to Corning, to be cared for, kept, and pastured, and on the 17th of April, 1886, another. Corning had kept, cared for, and pastured them down to the time of trial, and they were then in his possession. On the 24th of May, 1886, Corning served on all the defendants, except Freeman, a. notice that he claimed a lien for the keeping of the horses, in due form; and on the 15th day of March, 1887, another notice, of a similar character, on all the defendants. The horses had been in Huntington’s possession until he sent them to Corning. This action is brought to enforce Coming’s lien, under chapter 498, Laws 1872, amended by chapter 145, Laws 1880. The court found the value of the keeping since the service of the notices, and gave judgment therefor, and that the horses be sold to satisfy the lien. The defendant Ashley appeals, insisting that as against him, the mortgagee, the plaintiff has no lien.

The defendant Ashley insists, first, that, after default in the mortgage, the defendant Huntington was not “the owner” of the horses. The word “owner,” in this statute, is used in contrast with an entire stranger, a person who has no right or authority over the horses,—a thief, for instance, or a mere hirer of the animals. The mortgagor in possession, even after default, is not such a person. It is true that the decisions as to his rights are somewhat inconsistent with themselves. As where it is said that on default the mortgagee’s title becomes absolute, yet the mortgagor has an equity of redemption, and is not divested of all interest. Charter v, Stevens, 3 Denio, 33. But we need not in this case discuss the exact rights of such mortgagor. If the mortgagee does not take possession, he evidently leaves the mortgagor to take care of and use the property in a rightful manner, so that, if the mortgagee insists that on default he has become owner, he evidently considers the mortgagor (remaining in possession) as still having authority to do all things needed for the property. It is not meant by this that the mortgagor becomes an agent of the mortgagee, to bind him. Only that, under this statute, he is the owner, or a person acting for the owner, in distinction from a mere stranger. Scott v. Delahunt, cited below.

The next question, then, is as to the effect of the lien given by statute as against the mortgage of defendant Ashley. To create the lien, the statute requires previous notice of the amount of the charges, and the intention to detain the animals until the charges.are paid, to be given to the owner. Such notice was served on Ashley, as well as on the others, and the amount recovered is for charges since such service. In Bissell v. Pearce, 28 N. Y. 252, it was held that a mortgagor could not, by his own agreement, create a lien for the keeping of horses superior to the rights of the mortgagee. But this present case rests on a different ground. The statute creates the lien. That statute was in force when the mortgagee took his mortgage. He knew, or was chargeable with knowledge, that the statute then gave to the agister this lien, which would attach to any horses lawfully placed with him. It was intended to protect every agister by giving him a lien, and Ashley could not, by his mortgage, deprive an agister of the benefit of the statute. In a certain sense it may be said that the provisions of the statute entered into the contract of mortgage. In Scott v. Delahunt, 65 N. Y. 128, it was held that the owner of a mortgaged canal-boat, after the mortgage had become payable, might have necessary repairs made, and'that such repairs would be a lien prior to the mortgage. The law gave the lien as against the owner. The mortgagee had allowed the mortgagor to continue in possession and apparent ownership. Therefore the mortgagor might have repairs made. And the lien given by the common law to the workman attached as against the mortgagee. The court distinguished the case from that of Bissell v. Pearce in this respect, that in the one the lien was created merely by the agreement of the mortgagor; in the other, by the law. That distinction brings the present case exactly within the principle of Scott v. Delahunt. The lien is created by law, a law existing at the time of executing the mortgage; and, if the mortgagee desires to prevent the mortgagor from doing anything which might give rise to the lien, he should take possession of the property. The defendant urges that a man cannot, convey what he does not own. This remark would be applicable if the mortgagor had simply, by his own agreement, pledged the property, as in Bissell v. Pearce; but it does not apply when the law gives the lien,—a law to whicli the rights of the mortgagee are subject. In Scott v. Delahunt it is stated that during the time of making the repairs the mortgagee had knowledge thereof, and did not object. The same circumstances exist here. Ashley knew that the plaintiff had the horses for keeping, and knew of plaintiff’s claim to have a lien, and did not.object. The defendant Ashley further insists that he and the plaintiff, and the others, became tenants in common after the mortgage was payable, and hence plaintiff can have no lien. It is enough to say that Ashley, under the terms of the mortgage, had the right to be paid first, and before the others. Until he was paid,- the plaintiff and the others had practically only a second mortgage. This did not deprive the plaintiff of his rights as an agister under the statute. Judgment affirmed, with costs. All concur.  