| Ala. | Nov 15, 1893
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
In support of these views, he cites Jackson v. Kasseall, 30 Hun. N. Y., 231; Bissell v. Pearce, 28 N.Y., 252" court="NY" date_filed="1863-09-05" href="https://app.midpage.ai/document/bissell-v--pearce-3603701?utm_source=webapp" opinion_id="3603701">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" court="Neb." date_filed="1887-07-15" href="https://app.midpage.ai/document/state-bank-v-lowe-6645244?utm_source=webapp" opinion_id="6645244">22 Neb. 68; Easter v. Goyne, 51 Ark. 222" court="Ark." date_filed="1888-11-15" href="https://app.midpage.ai/document/easter-v-goyne-6542303?utm_source=webapp" opinion_id="6542303">51 Ark. 222; McCreary v. Gaines, 55 Tex. 485" court="Tex." date_filed="1881-12-16" href="https://app.midpage.ai/document/mccreary--barlow-v-gaines-4893625?utm_source=webapp" opinion_id="4893625">55 Tex. 485; Small v. Robinson, 69 Me. 425" court="Me." date_filed="1879-04-30" href="https://app.midpage.ai/document/small-v-robinson-4933505?utm_source=webapp" opinion_id="4933505">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" court="Mass." date_filed="1879-02-25" href="https://app.midpage.ai/document/hammond-v-danielson-6419534?utm_source=webapp" opinion_id="6419534">126 Mass., 294; Colquitt v. Kirkman, 47 Ga. 555" court="Ga." date_filed="1873-01-15" href="https://app.midpage.ai/document/colquitt--baggs-v-kirkman-5556377?utm_source=webapp" opinion_id="5556377">47 Ga. 555; Smith v. Stephens, 36 Minn. 303" court="Minn." date_filed="1886-12-29" href="https://app.midpage.ai/document/smith-v-stevens-7965228?utm_source=webapp" opinion_id="7965228">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" court="D. Mass." date_filed="1855-01-15" href="https://app.midpage.ai/document/the-granite-state-8631803?utm_source=webapp" opinion_id="8631803">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 ;
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.