239 F. 463 | 6th Cir. | 1917
In the case of Louisville Woolen Mills v. Johnson, 228 Fed. 606, 143 C. C. A. 128, we had for review certain proceedings in the matter of- the Tapp Clothing Company, bankrupt, and we held that the Woolen Mills had a materialman’s lien, under the Kentucky státute, against the bankrupt estate. In further proceedings below, in the same estate, it appeared that Tapp, as owner of the factory premises, had a landlord’s lien against the same body of property. There was not enough to satisfy both; and the referee and the District Judge have both held that the landlord’s lien takes precedence. Whether this view was right is the question for present decision.
Each lien is created by an independent section of the Kentucky Statutes. The sections have no direct relation to each other. Apparently, when each lien was created, the existence of thé other was not distinctly in the legislative mind. Which one is superior must be-determined by comparison of the statutes and by interpretation of the general language. Unfortunately the subject has not been considered in any direct way by the Kentucky Court of Appeals.
“A landlord sball have a superior lien on the * * * personal property of the tenant * * * owned by him after possession is taken under the lease.”
Section 2314 provides that “if, after the commencement of any tenancy, a lien be created on the property upon the leased premises,” the lien- or may remove the property from the premises only upon satisfying the landlord’s lien; by section 2315, an execution against the tenant,, levied on the property found on the leased premises, must be satisfied-subject to the landlord’s lien; and section 2316 says: “All valid liens upon the personal property of a lessee, * * * created before the property was carried upon the leased premises, shall prevail against * * *. the landlord,” while, “if such lien be created whilst the prop
The materialman’s lien arose under section 2487, and is regulated by sections 2488, 2489, and 2490. Section 2488 provides.that it “shall be superior to the lien of any mortgage or other incumbrance thereafter created.” This court has considered the nature of the landlord’s lien, as applicable in bankruptcy proceedings, in Courtney v. Fidelity Co., 219 Fed. 57, 134 C. C. A. 595, and has discussed the character of the materialman’s lien in the Johnson Case, supra, and the cases therein cited.
The District Judge applied the rule of some earlier decisions in the District Court. These depended, essentially, upon the theory that the lien of the materialman did not vest or exist or attach in any tangible way until the time of bankruptcy, but was an inchoate right to a preference upon distribution if the specified distribution should occur, rather than a definite lien. If this view should be adopted, it would solve the present controversy;. but we think it .is inconsistent with the Johnson Case and our previous opinions there cited and discussed. The unescapable inference from these opinions is that the materialman’s lien is created along with the shipment and delivery of the goods, and that the statutory provisions which specify “when” the materialman shall “have” the lien refer to the maturity of the lien and to the time when and the event on account of which it may be foreclosed or enforced. We see no construction, other than this, which will make the law reasonably efficient and workable. It is a mistake to suppose that this lien may never come to full maturity, unless under exceptional conditions which the lienor cannot control. It may be avoided by payment; but, short of that, the lienor can always bring it to maturity by taking judgment and levying execution.
Keeping in view these characteristics óf the materialman’s lien, and without expressing any opinion as to whether it may be subject to a landlord’s lien under a lease in existence when the property was taken upon the leased premises, we are compelled to think that it does take priority over the lien of the landlord under a lease made after the shipment and delivery of the raw materials to the manufacturing tenant. With otherwise equally balanced considerations on both, sides of the argument, there are three things which lead us to the conclusion stated:
The first is that section 2316, which undertakes to declare the respective rank of the landlord’s lien and all other valid liens on defendant’s property, makes it turn upon the situation when the property, sought to be subjected, was carried upon the premises; and the lien of the materialman, for the unpaid purchase price, is in the nature of
The second is that the materialman’s lien is given by the same statute and is enforced in the same way as the employé’s lien for wages. Section 2488 says that the lien for material or wages “shall be superior to the lien of any mortgage or other incumbrance thereafter created,” and that the lien for wages accruing within 6 months shall be superior even to the lien of any mortgage or other incumbrance theretofore created. It follows that the landlord’s lien, created after materials were furnished, cannot be given priority over the lien for material without, at the same time, making it superior to any lien for wages which are more than 6 months old. Since the landlord’s lien may reach back 11 months, this would be to say that the lien for rent of a factory building, accruing during the first 5 of the 11 months just ended, was superior to the lien for wages accruing during the same period, and in view of the universal favor given labor liens, this would be an unusual presumption.
The third thing is that the section just cited expressly declares priority over “any mortgage or other incumbrance thereafter created.” The effect of this language to give priority to the lien for material cannot be evaded, except by saying that the landlord’s lien is not an “other incumbrance.” This restrictive meaning is said to be made out by reliance upon the rule of ejusdem generis. We think that rule cannot be here applied. We observe no instance of any incumbrance, other than a mortgage, of precisely the same class, and hence, unless “other incumbrance” is intended to reach beyond the specific class, the words can have no meaning. Further, a mortgage is not an incumbrance of lesser dignity than a lien for rent. Such lien may be created by mortgage provisions in the lease, or may be implied by law from the contract which the parties make. No reason appears why the labor or material lien should have been given priority over an express mortgage for rent, and yet be subject to an implied lien for the same rent. The holding in Hatton v. Rogers, 134 Ky. 840, 121 S. W. 698, to the effect that an attachment was not an “incumbrance,” is not applicable to a statutory environment materially different from that there considered.
Upon the whole, we think it reasonably dear that of these two liens in this case the landlord’s is of inferior rank.
The question was raised below whether the lien for materials extended to the whole fund in court. We do not see that it was decided, and the record does not enable us to do so.-
Upon the appeal, the case must be remanded for modification in conformity with this opinion. The appellant will recover costs.
The petition to revise is dismissed.
We do not overlook Hall v. Guthrie, 103 S. W. 721, 31 Ky. Law Rep. 801, in winch it was said that there was no lien before the happening of the event (in that case, an assignment). The question was whether, when the materials were furnished, the lien came into existence in such a way as to make necessary the filing of the claim of lien specifically required for builders’ liens and which some general language seemed to apply to all liens. Whether a lien exists so far as to carry such á burden and whether it exists far enough to give it reasonable efficiency are obviously different questions.
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