
    Erastus Corning, Resp’t, v. Leurendus B. Ashley, Impleaded, etc., App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed February 7, 1889.)
    
    1. Agisters lien—Owner—Meaning op.
    Tlio word “owner” in the statute relating to an agister’s lien is used in contrast to an entire stranger who has no right or authority over the property; a mortgagor in possession is not such a person.
    2. Same—Notice op must be given to owner—Laws 1872, chap. 498, AMENDED LAWS 1880, CHAP. 145.
    To create a lien under the statute (Laws 1872, chap. 498, amended by Laws 1880, chap, 145) previous notice of the amount of the charges and an intention to claim the property until they are paid must be given to the owner.
    3. Same—When prior to mortgage.
    Where a lien is created by law a mortgagee of property is chargeable with knowledge thereof, and if he suffers the mortgagor to continue in possession and apparent ownership after default, the lien wiE be preferred, to his mortgage.
    
      John 8. Morgan, for app’lt; Matthew Male, for resp’t.
   Learned, P. J.

On the 11th day of September, 1884,. Huntington, one of defendants, executed á 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 first 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 Corning’s lien under chapter 498, Laws of 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 there 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 Den., 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 continues 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 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., 123), 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 which 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.

Landon and Ingalls, JJ., concur.  