
    Metropolitan Securities Co. v. Orlow et al.
    
      Liens — Common law and statutory — Priorities—Mechanic's lien and recorded chattel mortgage — Record constructive notice . to repairmen — Mortgagor not agent of mortgagee, when— Automobiles.
    
    1. An artisan who furnishes materials or performs labor for the building or repair of chattel property has a valid common-law lien upon such chattel property for the reasonable value of such labor and materials while he retains such chattel property in his possession.
    2. Where such chattel .property is incumbered by a valid chattel ¡mortgage, properly executed and filed, according to the statutes of Ohio in such cases made and provided, such record is constructive notice to persons who thereafter perform labor or furnish materials in repairing such chattel property, and the common-law lien of such artisan is subordinate to the lien of the mortgagee thereon.
    3. A covenant in a chattel mortgage that the mortgagor will take care of the property, and keep it in first-class condition and order at all times, at mortgágor’s expense, does not constitute the mortgagor the agent of the mortgagee or authorize the mortgagor, by his contract for repairs, to create any lien which will take priority over such mortgage.
    (No. 17648
    Decided May 15, 1923.)
    
      Certified by tbe Court of Appeals of Lorain county-
    The facts are stated in the opinion.
    
      Messrs. Wilkin, Cross & Daoust; Mr. John H. Schultz and Mr. A. H. West, for plaintiff in error.
    
      Mr, Frank Wilford', Mr. F. M. Stevens and Messrs. Wilkin, Cross & Daoust, for defendants in error.
   Marshall, C. J.

This cause was certified to this court by the Court of Appeals of Lorain county on the ground that the decision reached by that court was in conflict with a decision of the Court of Appeals of the eighth appellate district. The cause was heard on appeal in"the: Court of Appeals;At being an action to determine priority between a chattel mortgage properly filed for record, and the common-law lien of an' artisan for labor and materials performed and furnished upon an automobile, the machine having been retained by the artisan in his possession. The Metropolitan Securities Company .was the owner by assignment of a chattel mortgage executed by Martin- Orlow dated May 28, 1921; the mortgage having been given for the purchase price of the machine, which chattel mortgage was filed June 7, 1921, with the recorder of Cuyahoga county, where all the parties resided and where the sale of the automobile was made and chattel mortgage given. By the terms of the mortgage the mortgagor was permitted to retain possession and use of the machine and the mortgagor agreed not to incumber the machine without the written consent of the mortgagee, and further covenanted and agreed “to take the best care of the property and keep it in first-class condition and order at all times at the expense” of mortgagor. Some time thereafter, and while the mortgage was still in full force and effect, the machine became damaged and was left by the mortgagor with J. J. McGuire, a mechanic, for repairs. Repairs were made by him upon the orders of Orlow, but without knowledge or consent of the mortgagee. The machine was delivered to McGuire for repairs September 18, 1921, and remained in his possession up to the time it was sold under order of the Court of Appeals. The Court of Appeals found that there was due to the mortgagee the sum of $451.70, with interest from October 29, 1921, and that the same was a first lien upon the automobile, and the court further found that there was due to J. J. McGuire, upon his common-law lien, the sum of $355.20, with interest from October 1, 1921, and that such lien was inferior to that of the chattel mortgage. The court made no finding as to the value of the automobile at the time the repairs were ordered, nor of the extent to which the value of the car was enhanced by the repairs. By consent of parties the automobile was sold under the foreclosure decree of the Court of Appeals with the understanding that the lien would attach to the fund. Upon sale the machine sold for only $280, and the question for determination is which of the parties is entitled to the fund.

It has been urged that the legal question involved in this case is affected in some measure by Section 33, Article II of the Ohio Constitution, as amended in 1932, which provides:

“Laws may be passed to secure to mechanics, artisans, laborers, subcontractors and materialmen, their just dues by direct lien upon the property, upon which they have bestowed labor or for which they have furnished material. No other provision of the Constitution shall impair or limit this power.”

It is quite certain that this amendment was intended to apply only to liens of mechanics, artisans, other laborers, and materialmen for improvements upon real estate. The language of the amendment is, of course, broad enough to include improvements to personal property. However, if such an application be given that amendment, it is perfectly apparent that it can have no operation upon the issues of the present controversy, because the amendment is not self-executing and by its terms provides only that “laws may be passed.” In the absence of any legislation pursuant to that amendment the situation remains exactly as it was before the amendment. If any force and effect were to be given that amendment, in the absence of legislation pursuant thereto, it would be more reasonable to say that mechanics, artisans, and other laborers could have no lien upon personal property until legislation were enacted. We think therefore it is more reasonable to apply that amendment to proposed liens upon real estate, and to recognize what really is the fact, that it was intended to authorize legislation giving a “direct” lien upon real estate without regard to a contract between the owner of the property and such mechanics, artisans, and other laborers. Such an interpretation of that amendment would leave artisans’ liens upon personal property to continue to exist as heretofore under the common law. There is no division among the members of this court concerning the right of artisans to have a common-law lien, and if such right has not been recognized by this court at any earlier date it is quite evident that it is only because the question has not heretofore been before the court for determination. The right is an ancient one, based upon immemorial custom, and, so far as we have been able to learn, has been recognized by every jurisdiction that has ever had occasion to consider the question.

The Legislature of Ohio has never created a lien in favor of an artisan for labor and materials rendered and furnished upon chattel property, but by the well-settled provisions of the common law, which will be fully recognized by this court, an artisan who performs labor, lends skill, or furnishes material for the building or repair of chattel property has a lien upon the chattel to which he has contributed his labor, skill, or material while he retains such chattel property in his possession. McGuire, by his contribution of labor and material and his continued possession of the machine, acquired a valid and subsisting lien upon it from the date the labor and materials were furnished. The only question for determination is whether that lien attached to the entire automobile or attached only to the interest of Orlow at the time the machine was delivered to McGuire for repairs and was therefore subject to the lien of the recorded chattel mortgage.

It has been decided by this court in Robinson, Jr., v. Fitch, 26 Ohio St., 659, that—

The “interest of a mortgagee under a chattel mortgage is that of a general owner of the property mortgaged; and where there is no reservation of the right to the possession in the mortgagor, the mortgagee is entitled to the possession.”

This is the only pronouncement of this court upon that subject, but that rule has never been departed from by this court and it has been followed in many cases by the lower courts of this state. The same doctrine prevails in the law of real estate mortgages, in an unbroken line of authorities. It is the principle of a real estate mortgage that it operates as a conveyance of the fee subject to a defeasance, and that upon condition broken the conveyance becomes absolute, and thereupon the mortgagee becomes entitled to possession of the real estate free from any claim of the mortgagor. At this point equity intervenes and, in order to do justice between the parties, requires that an action be brought to foreclose the equity of redemption.

By the provisions of Sections 8560 and 8561, General Code, a chattel mortgage may be deposited with the county recorder of the county where the mortgagor resided at the time of the execution of the mortgage, if a resident of this state; and by the provisions of subsequent sections the mortgage shall, by the county recorder, be filed, indexed, and kept for the inspection of all interested persons. The mortgagee by himself or agent must make a sworn statement of the amount due and that it is just and unpaid. Unless the compliance with these statutory provisions constitutes notice to the world of the existence of a lien upon chattel property, then the statutory provisions are worse than a nullity, because their only effect would be to mislead persons who lend money on chattel property upon the faith of such security. If such compliance with the statutory provisions constitutes constructive notice, then that notice is binding upon all persons, including McGuire, the artisan, who has made the repairs upon this machine. It was the finding of the Court of Appeals that the Metropolitan Securities Company had no knowledge of the needed repairs and had not given its consent that such repairs be made, by McGuire or any one else.

It was urged that, the machine having been damaged, repairs would be beneficial, and that consent may be implied. This does not by any means follow. It may be conceived that the machine was in such condition that repairs would not enhance the value thereof to the full amount of the cost of the repairs, or it may be further conceived that the mortgagee would prefer to make the repairs himself and be the judge of the extent thereof. It is quite certain that, although repairs were made by McGuire at a charge of $355.20, the machine itself, after completion of the repairs, sold for only $280. The record does not disclose the true condition of the machine before the repairs were made, but the itemized bill of the artisan shows that less than $40 was expended for new parts.

The small amount of this item leads to the conclusion that the injuries were not extensive and the fundamental usefulness of the machine not destroyed or even seriously impaired. It cannot reasonably be doubted that the machine had a very substantial value before any of the repairs were made, and it was this value which the mortgagee was entitled to have undiminished by being subordinated to a claim of a repair man whose labor and materials might or might not increase the value of the injured machine by the amount of his charges, however reasonable such charges might be.

It has further been urged that the mortgagee gave express consent, and that this claim is borne out by the provision of the mortgage above quoted to the effect that the mortgagor would keep the property in first-class condition at his own expense. We are of the opinion that the correct interpretation of this clause does not j'ustify the assumption that the mortgagor was constituted the agent of the mortgagee. Upon no reasonable theory can it be said that expenses were to be charged against the mortgagee, when it was expressly agreed that they should be paid by the mortgagor. If it should be held that this is not the true interpretation of that clause in the mortgage, but, on the contrary, that the language employed authorized the mortgagor to contract the repairs and make the charge a lien upon the machine prior to that of the mortgage, then by the same reasoning it must also be held that the authority to contract for the repairs would make the mortgagee personally liable for the amount of same. It requires no logic to show the serious danger to which such doctrine would lead. It would be unsafe for any one to be named as the mortgagee of personal property, where there could be any possibility of extensive repairs becoming necessary. Such a doctrine would make it impossible for persons to borrow money upon the security of chattel property. Upon no principle of law, good morals, or common sense can any person create a lien upon property which he does not own, nor beyond the extent of his interest in property which he does own, and the court should not find in favor of any such lien except upon authority either expressly given or necessarily implied from facts and circumstances which will admit of no other conclusion.

In Rankin v. Scott, 12 Wheat. (25 U. S.), 177, 6 L. Ed., 592, the court held:

“The principle is believed to be universal, that a prior lien gives a prior claim, which is entitled to prior satisfaction, out of the subject it binds, unless the lien be intrinsically defective, or be displaced by some act of the party holding it, which shall postpone him, in a court of law or equity, to. a subsequent claimant.”

By the statutes of this state a livery stable keeper has a lien which is given priority over liens of chattel mortgages; but the Legislature has not seen fit to extend such priority to artisans’ common-law liens. Before passage of the livery stable keepers’ statute the lower courts of this state had refused such priority. On the other hand, mechanics’ liens upon real property are by the express provisions of the statute, made to attach only to the interest of the owner at the time the repairs are made. No assistance by analogy is therefore to be obtained from such cases. >■

However, authorities are by no means wanting upon the legal principles involved in this controversy. Counsel for the repair man rely upon two or three cases, which will first receive attention.

The case of Drummond Carriage Co. v. Mills, a Nebraska ease, reported in 54 Neb., 417, 74 N. W., 966, 40 L. R. A., 761, 69 Am. St. Rep., 719, is perhaps the strongest case cited. But a careful examination of the opinion in that case discloses that the court fell into the error of treating the buggy of a physician as analogous to a vessel needing repairs in a foreign port in the course of a voyage. And it is further apparent that the court in that case was influenced by the facts and circumstances to hold that there was implied authority from the mortgagee to have the repairs made.

Another case is that of Hammond v. Danielson, 126 Mass., 294. The property upon which a lien was claimed in that case was a hack which was being let for hire and retained by the mortgagor to afford a means of earning the wherewithal to pay off the mortgage debt, and it is apparent that in that case there was a true analogy to the admiralty law. But the courts of Massachusetts are not committed to the doctrine of giving artisans’ liens priority over chattel mortgages as is shown by an examination of Globe Works v. Wright, 106 Mass., 207, where a contrary doctrine was held.

Another case is that of Broom & Son v. Dale & Sons, 109 Miss., 52, 67 South., 659, L. R. A. 1915D, 1146. That case can have very little force as authority for the repair man, because it is apparent that the mortgagee had full knowledge of the making of the repairs by the party claiming the artisan’s lien. That case is practically destroyed as an authority by the later Mississippi case, Hollis & Ray v. Isbell, 124 Miss., 799, 87 South., 273, 20 A. L. R., 244, in which the case of Broom & Son v. Dale & Sons was distinguished.

The last of the cases relied upon by the repair man which we will notice is Watts v. Sweeney, 127 Ind., 116, 26 N. E., 680, 22 Am. St. Rep., 615. The property in that case was an engine being used by a railroad company. This ease is therefore somewhat similar in principle to the Massachusetts case, Hammond v. Danielson, supra, and both of those casies come within a different principle and aré placed in a class different from one in which liens claimed upon pleasure automobiles are involved. Without any exception, maritime liens are recognized as having priority over chattel mortgages, upon grounds of public policy, and because of the certain benefit that accrues to a mortgagee of a vessel from the making of repairs, and the immediate necessity for so doing to permit the vessel to continue on its journey, a benefit which results not only to the owner of the vessel but to the mortgagee as well. Some analogy may be drawn between maritime liens and liens upon personal property devoted to and being employed in public service, but no possible analogy can be drawn between maritime liens and liens upon a pleasure automobile. A vessel requiring repairs at a foreign port before it could proceed upon its journey would not only be a total loss if it did not proceed, but the cargo would also be lost or damaged by the delay. There is every reason why a vessel should be promptly repaired and proceed upon its voyage, while, on the other hand, a pleasure automobile not only earns nothing but offers greater security to the mortgagee by remaining idle.

While, as before stated, a few cases can be found which apparently support the repair man’s contentions, we think they can properly be distinguished, not only as having been based upon an improper and an unwarranted analogy to maritime liens, but also, in some instances, upon the peculiar facts and circumstances of the case. On the other hand, a large number of authorities supports the claims of the priority of the chattel mortgage. Without attempting to enter into a discussion of all such eases, it is sufficient to say that it has been so decided by the courts of the following states: Michigan, Illinois, Tennessee, West Virginia, New Hampshire, Georgia, Missouri, Alabama, South Carolina, Texas, Washington, Oklahoma and South Dakota.

The underlying principles of all those cases is that the lien which is prior in time is prior in right, and that the record of the mortgage is notice to the whole world, including the repair man. It is apparent that a mortgagee without notice of the intended repairs has no opportunity to protect himself, and that he cannot be the judge of whether repairs are needed, or to what extent such repairs would enhance the value of the property, or whether the contract for repairs is a reasonable one; while, on the other hand, the repair man has every opportunity to fully protect himself before either expending labor or using materials in repairs. There is no obligation on his part to do anything, or to incur a penny of expense, until he has assurance that the property is free from incumbrance. If the person in possession of the machine, who requests that repairs be made, cannot give such assurance, the artisan is not bound to proceed.

It being conceded in this case that the mortgage was properly filed, and that by proper diligence McGuire could have learned all about it, and it being found that the mortgagee did not know of or consent to the repairs made by McGuire, and it being further found by the Court of Appeals that the claims and liens of both parties are valid, no equitics are presented to affect the application of the legal principles involved. We therefore hold that McGuire had constructive notice of the existence and the validity of the mortgage, that his lien attached only to the interest of the mortgagor in the machine, and that the lien of the artisan is therefore inferior to that of the filed mortgage. The property having already been sold, it is the judgment of this court that the fund remaining after payment of the expenses of the sale and the costs, in the lower courts be awarded to the Metropolitan Securities Company, and that the costs of this error proceeding be adjudged against the defendant in error J. J. McGuire.

Judgment for plaintiff in error.

Robinson, Jones and Matthias, JJ., concur. Wanamaher, Day and Allen, JJ., dissent.

Wanamaker, J.

(dissenting). The concrete question in this case is this: Shall a prior chattel mortgage on an automobile be permitted to postpone or defeat a mechanic’s lien for subsequent rebuilding and repairing said automobile, to the extent of the fair and reasonable value of the repair and materials therefor?

The right to a mechanic’s lien antedates all Constitutions and statutes. It is a common-law right established and recognized centuries ago and has become a settled law in this country, except where modified by a statute or Constitution. A new emphasis was given this common-law right by a constitutional declaration made in 1912, as follows:

Article II, Section 33: “Laws may be passed to secure to mechanics, artisans, laborers, subcontractors and materialmen, their just dues by direct lien upon the property, upon which they have bestowed labor or for which they have furnished material. No other provision of the Constitution shall impair or limit this power.” (Adopted September 3, 1912.)

The state of Ohio has thus redeclared this primary and paramount doctrine in favor of the mechanic, the workman.

It is urged in the majority opinion that this constitutional doctrine contemplates only lien upon “real property.” I find no such limitation in the language of the Constitution. Upon the contrary, the language is “the property upon which they have bestowed labor or for which they have furnished material,” clearly comprehending both real property and personal property.

Indeed, it is a matter of common knowledge that the mechanic needs greater protection upon personal property than.he needs upon real property. Personal property by its very nature is not only more perishable but more transitory, and capable of avoiding payment for any service thereon by fleeing the jurisdiction.

What the sovereign people refused to write into their Constitution the Supreme Court is not permitted to write therein. True, no statute has been passed since that constitutional enactment declaring the doctrine, but the common-law doctrine per taining to mechanics’ liens so long as the mechanic retained possession of the chattel is abundantly sufficient and need not be supplemented by a statute in order to safeguard the mechanic’s rights so long as he retains possession.

The courts below found that under the prior mortgage, which was regularly executed and kept in force, there was due the Metropolitan Securities Company the sum of $450. The courts, below found that J. J. McGuire, a mechanic, had furnished material and bestowed labor in rebuilding and repairing said automobile in the sum of $350, and that said sum was the fair and reasonable cost and value of said rebuilding and said repairs.

The record unquestionably shows that the owner and driver, Orlow, had so driven said automobile, that it collided with a bridge, disabling and dismantling said automobile so that it had to be taken to a garage or repair shop in the usual motor ambulance provided for such transportation.

Suggestion is made in the majority opinion that, after all, the repairs were small and comparatively valueless compared with the value of the original automobile. This contention is contradicted by the finding of the courts below that $350 was the fair and reasonable value of the labor and materials furnished.

Hence the suggestion that the record discloses less than $40 paid for new parts is quite unimportant, especially in view of the fact of such finding, and, secondly, because of the testimony in the record given by the mechanic, J. J. McGuire, to this effect.

Touching the condition of the car, McGuire testified :

“The car is a big seven-passenger Willys-Knight car, and it was damaged in such a manner, the frames was bent back of .the motor, that it was necessary to remove the body, motor, everything, even the back axle housing was bent, so the car was stripped entirely, and the wiring, pipe, and everything else had to come off. That is what took so much labor to remove it and so much labor to reassemble it again.”

Touching the assembling of the car, McGuire testified :

“The assembling of the motor consisted of the refitting of the crank shaft, refitting of all the bearings, refitting rod bearings, cleaning up and the refitting of the piston rings and all other working parts of the motor, and putting same in first-class condition and testing it out. After the refitting was done the mounting up, putting the cylinder back upon the crank case and the exhaust manifold and the intake manifold, the carburetor and all the necessary connections on the motor, and the replacing of the motor back in the frame. The assembling of the car included the replacing of the body back upon the frame, and the fenders and the running boards and the splash pans on both sides and the mud pan and the front axle, the springs, the steering gear, the steering column, the vacuum tank, and all the piping and the wiring and the battery, and the placing of the transmission back in, and the grease cups we had out, the drive shaft, the rear springs and the rear axle housing, rear axlesi, and wheels.

“Q. How much was there left of that car when you got it down to where you could finally begin to build it up? A. Why, there wasn’t anything except the frame. We had to strip it right down to the chassis frame, had to take the body, side pans, and the fenders and the running boards and all of that.

The Court: , Q. Asa mechanic do you say it was necessary to strip that down to that point? A. Absolutely. It was the only way to do the job.

“Q. How much experience have you had in repairing automobiles by that time? A. I have repaired a lot of them in that wrecked work.

“Q. For how many years? A. For two years.”

There is much more testimony to the same effect, but this is sufficient to demonstrate that the automobile after the collision was simply a shell, a piece of junk, as far as service or value was concerned.

The question of such priority is a new one in Ohio. Other states, however, have declared upon parallel, or at least analogous, cases. An interesting ease from Nebraska, Drummond Carriage Co. v. Mills, 54 Neb., 417, 74 N. W., 966, 40 L. R. A., 761, 69 Am. St. Rep., 719, is much in point. The pertinent part of 'the syllabus reads:

“A physician gave a mortgage on a buggy of which he retained possession and used it in his business. * * * The mortgagor, without the knowledge of the mortgagee, left the buggy with a carriage company for needed repairs. The company repaired the buggy and retained possession thereof to enforce a claimed lien for, or the payment of its reasonable charges for, such repairing. The mortgagee instituted an action of replevin against the carriage company to obtain possession of the buggy, asserting right thereto under and by virtue of his mortgage lien. Held, that the mortgage lien was subordinate to the common-law lien, since the recitals of the mortgage and the facts and circumstances disclosed that the mortgagor had at least implied authority from the mortgagee to have the repairs made.”

In the opinion, at page 422 of 54 Neb., at page 968 of 74 N. W. (40 L. R. A., 761, 69 Am. St. Rep., 719), the origin and nature of the mechanic’s lien is aptly set forth as follows: •

“If property is delivered to a person to be by his skill and labor or by adding thereto property of his, enhanced in value, and he performs the labor or adds his own property to that delivered and thereby increases the value of the latter, he may retain possession of it until paid for his labor or materials. This is a doctrine of the common law, and the right is usually denominated a common-law lien, and it exists under a state of facts such as we have just detailed, unless there is a contract inconsistent with such lien, or some modifying circumstances which are in conflict with any such right, or disclose an intent not to claim the right.”

The following authorities are there cited:

“ ‘ A mechanic of any kind has a lien upon all personal property for manufacture or repairs, while it remains in his possession, * * * a carriage maker for repairs upon a carriage.’ (See 6 Wait, Actions & Defenses, 149, and cases cited.) Persons have by common law the right to detain goods on which they have bestowed labor, until the reasonable charges therefor are paid. (2 Kent, Commentaries, 635.) ”

The opinion continues:

“In the absence of specific agreement, if a party has bestowed labor and skill on a chattel bailed to him for such purpose and thereby improved it, he has by general law a lien on it for the reasonable value of his labor or the right to retain it until paid for such skill and labor. Bevan v. Waters, 3 C. & P. [Eng.] 520; Scarfe v. Morgan, 4 M. & W. [Eng.] 270; Lord v. Jones, 24 Me., 439, 41 Am, Dec., 391; Grinnell v. Cook, 3 Hill [N. Y.] 491. This right rests on principles of natural equity and commercial necessity. (2 Kent, Commentaries, 634.) ”

This primary right recognized by the common law to retain possession of repaired or-rebuilt chattels that have value added to them by the mechanic through his-labor, skill and new material-added, to the extent of the fair and reasonable value,thereof, is in sound reason and good conscience prior to the right, not only of the owner of the automobile, but of all third parties.

It is suggested in the majority opinion that in the Nebraska case, supra, the court “was influenced by the facts and circumstances to hold that there was implied authority from the mortgagee to have the repairs made.” Now, this case is stronger than the Nebraska case, in that there is not only implied authority “to have the repairs made” but express authority. There is in the mortgage an obligation placed upon the owner to keep the automobile in repair.

That obligation imposed by the mortgagee upon the mortgagor carries with it the law applicable to such contract, to-wit, the law giving to any repairer, rebuilder or mechanic the right to the fair and reasonable value of his work and material in doing such repairing and rebuilding. As between the mortgagor and mortgagee, 'they might well contract as to who should pay, but that cannot in any wise affect the right of the mechanic to his pay before surrendering possession.

A Mississippi case is much in point, Broom & Son v. Dale & Sons, 109 Miss., 52, 67 South., 659, L. R. A., 1915D, 1146. The syllabus contains this language:

“Under Code 1906, Section 3075, which is merely declaratory of the common law, and which provides not only that a mechanic may retain, in his possession, any article which he repairs until the price of his labor and material furnished shall be paid, but also provides for the enforcement of the lien, where a mechanic repaired an automobile, the repairs being ordered by the person in possession who was apparently authorized to contract for same. Such mechanic has a lien for his labor which takes precedence over his rights of the vendor of the machine who sold it, reserving title to secure payment, but transferred the possession to the party ordering the repairs.”

The essential facts appearing in this language from the Supreme Court of Mississippi are exactly parallel to the essential facts here. It is urged, however, that the law of the Broom case has been overruled by the Supreme Court of Mississippi in a later case, to-wit, Hollis & Ray v. Isbell, 124 Miss., 799, 87 South., 273, 20 A. L. R., 244.

This conclusion is unwarranted from the language of the court itself in the latter case, which at page 807 of 124 Miss., at page 274 of 87 South. (20 A. L. R., 244), approves the Broom case and distinguishes it from the later case, as follows:

“A ground of liability rests upon the proposition that the vendor had knowledge and impliedly consented to the repair of the car, and that the repair resulted to his benefit as well as to the benefit of the vendee. In the case before us the vendor had no knowledge whatever that repairs were being made or were to be made until after their completion. There is nothing in the record to show- that the repairs increased the value of the car over and above its value at the time of the sale.”

Again, the opinion in the Hollis & Bay case contends, at page 808 of 124 Miss., at page 274 of 87 South. (20 A. L. R., 244):

“In the present case it was agreed in the agreed statement of facts, above set out that the seller had no knowledge of the transaction between the mechanic and his vendee, but shows, on the contrary, that the mechanic had full knowledge of the seller’s right. This being true, he must have contracted upon the faith of the credit of the vendee and such right as the vendee had in the property repaired. There are no circumstances in this record sufficient to warrant us in applying the doctrine of Broom v. Dale, supra, to this case. There is a clear distinction between this case and that one.”

This all shows that the doctrine of the Broom case, where applicable, still controls in Mississippi.

This same doctrine is announced and applied in Watts, Trustee, v. Sweeney, 127 Ind., 116, at page 123, 26 N. E., 680, at page 682 (22 Am. St. Rep., 615), where it is said:

“When the mortgagee intrusts machinery of the character in controversy to the custody of the mortgagor for a long period of time, to be used by the mortgagor in operating the railroad, it will be presumed against the mortgagee" that all necessary repairs were contemplated, and the mortgagor was, in case of needed repairs, constituted the agent of the mortgagee in procuring such repairs, and in such case equity gives the mechanic a lien for his services and materials. The repairs add to the value of the property, and they are for the benefit of the mortgagee as well as the mortgagor.”

The same doctrine was announced and applied in Hammond v. Danielson, 126 Mass., 294:

“A lien on personal property cannot indeed be created without authority of the owner. * * * But in the present case such an authority must be implied from the facts agreed. The subject of the mortgage is a hack, that is to say, a carriage let for hire; described in the mortgage as ‘now in use’ at certain stables; and which, as the parties have agreed in the case stated, the mortgagor retained possession of and used agreeably to the terms of the mortgage. It was the manifest intention of the parties that the hack should continue to be driven for hire, and should be kept in a proper state of repair for that purpose, not merely for the benefit of the mortgagee, but for that of the mortgagor also, by preserving the value of the security and affording a means of earning wherewithal to pay off the mortgage debt. The case is analogous to those in which courts of common law, as well as of admiralty, have held, upon general principles, independently of any provision of statute, that liens for repairs made by mechanics upon vessels in their possession take precedence of prior mortgages.”

Now', it is suggested that this doctrine in the Massachusetts case, Hammond v. Danielson, 126 Mass., 294, supra, is contrary to the older Massachusetts case found in 106 Mass., 207 (Globe Works v. Wright), where the contrary doctrine was held. Clearly the later case should control, whether or not in conflict.

The mortgage here contains this language pertaining to the obligation of the mortgagor:

“Agrees to take the best care of the property and keep it in first-class condition and order at all times at the expense of the ‘purchaser.’ ”

The mere fact that that is to be done “at the expense of the purchaser” does not alter the authority to have the repairs made.

This same doctrine is announced in 3 Ruling Case Law, 134, Section 56, and cases cited. This doctrine has for a long time universally prevailed in the admiralty courts touching the lien of a mechanic upon a boat. The doctrine is stated in Jones on Chattel Mortgages. (5th Ed.), Section 474:

“A lien given upon property by force of law or statute, without any contract to create it, may in exceptional cases have precedence on an existing mortgage. Thus, the lien of a shipwright upon a boat in his possession, for repairs necessary for its preservation made upon it, may be enforced as against a prior mortgage duly filed or recorded.”

What difference there can possibly be between a transportation agency, such as a ship at sea, and an automobile, bus, truck, or the like on land, is difficult to distinguish.

Something is made of the reference in the mortgage to a pleasure automobile in the majority opinion. Suppose it were a motor truck, what then1? The same principle must apply.

It would seem to be a primary principle that when the subject-matter is destroyed the lien which operates upon it is likewise destroyed. The courts below found, notwithstanding the judgment of the Court of Appeals was against the mechanic, that the fair and reasonable value of the time, labor, skill and materials furnished by the mechanic in rebuilding and repairing the automobile after the collision with the bridge was $350. The automobile subsequently sold for less than that amount. One conclusion is obvious, and that is the state of the automobile after the collision must have been such that its identity, utility, and value as an automobile had been entirely lost, and the record so clearly shows. It was junk. The very nature and necessities of the situation, to both mortgagor and mortgagee, would have compelled both of them, before either might have realized any substantial value out of that automobile, to have ordered the reasonable and necessary repairs involved in the rebuilding of the car.

The most that could be claimed in equity for the mortgage holder, and all liens are founded in equity, would be a first lien upon the fair value of the automobile as junked by the collision; and how in equity and justice can it be said that the mortgagee who had a lien upon the original car, which was destroyed, could transfer that lien to the rebuilt car and deprive the rebuilder of the fair and reasonable value of his time, labor, skill and materials necessary for such rebuilding? It sounds neither in reason, equity, or justice.

Another illustration, not uncommon, will apply. A person is the owner of a very valuable clock that had been a family heirloom. In straitened circumstances, he places a mortgage upon that clock in a substantial sum. While such mortgage is in force, the clock falls from its attachment upon the wall upon the floor and is broken in many pieces. One of the conditions of the mortgage is that the mortgagor shall keep the clock in good repair at his own expense. He takes it to a skilled clockmaker for the purpose of having such clock rebuilt and put in repair as a going concern. The clockmaker in the rebuilding discovers many of the pieces of the clock broken and replaces them; discovers many other parts bent and out of line and straightens them. He performs skilled labor and furnishes material for said clock and holds the clock for the fair and reasonable amount and value thereof. The mortgagee claims his lien upon the chattel is superior to that of the clock mechanic. Who shall prevail? Who shall have priority? The answer would seem self-evident, if laws shall serve justice rather than to have justice warped to some mere dictum of law.

The majority opinion refers to the case of Robinson, Jr., v. Fitch, 26 Ohio St., 659, purporting to hold that —

“The interest of a mortgagee under a chattel mortgage is that of a general owner of the property mortgaged,” etc.

This is a mere dictum in the syllabus and the opinion, and neither reason nor authority is given foi* the holding. The language itself involves a contradiction. How the same person can. at the same time be both mortgagor and mortgagee of the same property involves a self-evident contradiction. lie is a lienholder, and to the extent of the lien he is an equitable owner, not the legal owner. The one in possession and custody of the automobile is the apparent owner. Lawful possession is prima facie evidence of ownership to the public. Orlow was in lawful possession of the car, not only authorized to repair but obligated to repair it when out of repair. The claim that the garage man, the mechanic, must keep a mortgage record of all the automobiles of the state which he is called upon to repair, or that he must make actual inquiry of the official records at his own cost and expense, or else repair at his peril, would work such a handicap of delay and expense upon the transportation agencies of this state that the impracticability of it would be obvious.

Lord Coke uttered and laid down an epigram that is the very essence of the law: “Reason is the life of the law; nay, the common law itself is nothing else but reason.”

Decisions may be found upon almost every side of every legal question. Very often, however, they are valueless because they are mere dictums, a mere “thus saith the court.”

The common-law lien of the mechanic is founded upon a basic reason, having its foundation in good conscience; in short, it is this: “The workman is worthy of his wage.” When that doctrine is applied to the building, rebuilding or repairing of a chattel by which new value is added to old chattel,, it is certainly good conscience that the man who added the value shall have priority over the mere money lender, whose original machine has been destroyed in value and who authorized the man in possession thereof to keep the same in good repair.

The basic doctrine in all these cases, even the eases cited in the majority opinion, recognizes the old common-law doctrine of the mechanic who adds value to a chattel by his labor and material and uniformly preserves his prior right so long as he retains possession of the chattel. If that be true doctrine, how can it be said that there is any distinction between such common-law lien of a mechanic upon a vessel, upon a ship at sea, or upon a different transportation agency upon land? Why, in principle, should the mechanic who works upon the ship, who works on a machine of the sea, be more favored than the mechanic who works upon the machine of the land?

It is suggested that there is a distinction so far as public needs are concerned, and that therefore there is greater necessity for immediate repairs for the ship in order that it may pursue its journey upon the sea and be kept all the while seaworthy. This suggestion, however, overlooks the fact that the equity doctrine involved in the common-law lien of the mechanic is not founded upon any rights other than the mechanic’s rights.

Nineteen centuries ago it was written by a great lawyer and logician: “The laborer is worthy of his reward.” The doctrine in this case denies such reward to the workman, but makes him donate his labor and material to the chattel mortgage man.

Another rule of law should find wholesome recognition and application to this case. Where one of two innocent parties must suffer a loss, it has uniformly been held that he who creates the condition causing such loss, or is a party thereto in the natural course of events, should be the one who should bear such loss.

When the chattel loan mortgagee permitted the mortgagor to possess and use the chattel, and not only authorized but imposed upon such mortgagor the duty of keeping the same in repair, how can it fairly be said that such chattel mortgagee was not, in the ordinary course of events, a party to that collision and the wrecking of the car, as against the conduct and rights of the mechanic who rebuilt and repaired it?

The Supreme Court of Ohio, now making its first declaration as to the rights and priorities of the wage worker who rebuilds broken-down chattels, furnishing new parts, adding new materials, resulting in new value, should make its first declaration in keeping with the spirit of the times, with Ohio’s new Constitution and with the old-time equity upon which mechanics’ liens were originally founded, and adapt it to our modern conditions of industrial life with its enlightened twentieth, century policy.

The doctrine of priority as applied to contending claims, where all cannot be satisfied, has been much misunderstood and necessarily therefore much misapplied.

It may be laid down as a legal truism that, where claims are equal in law and equity, in reason and good conscience, those prior in time are prior in right. Necessarily, however, this applies only to claims of the same class, the same nature, essentially alike or analogous in origin and kind. But upon what principle can it be claimed, as to the claims of the money lender, who makes his loan at his own risk, basing his interest and commission charges, etc., upon his estimate of the hazard involved, permitting the chattel upon which he holds his lien to be possessed and used by others upon the much-traveled highways of the state, where there is constant danger of collision, that such a lien, under such circumstances, is of the same class as the mechanic’s or workman’s, who in the ordinary course of business is called upon to rebuild and repair such automobile when wrecked and entirely unfit and incapable of use?  