148 N.W. 654 | N.D. | 1914
Lead Opinion
Plaintiff corporation brings this action to foreclose its. chattel mortgage upon a threshing engine, and to determine priority of liens thereon, and particularly as against a blacksmith’s lien filed against the engine by Boyle Brothers, defendants. Plaintiff sold the engine to one Russell in 1906, taking a mortgage back, which was duly filed and has been renewed, and admittedly is, and always has been, a valid lien upon the property. On April 11, 1911, Russell wrote plaintiff for its. written consent to a sale of the mortgaged engine, receiving a reply dated April 15, 1911, in effect withholding consent until it could investigate and until certain conditions were complied with. Russell, however, took no further steps to obtain such written consent, and sold it to Arbogast, for valuable consideration, who bought with notice of the encumbrance. Arbogast thereafter consulted Boyle Brothers, machinists, at Jamestown, as to repairing the engine, and one of them Avent to Russell’s
Section 6295, Bev. Codes 1905, which does not declare priority of an artisan’s lien over recorded mortgages or encumbrances, was the only statute on the subject in 1906, at the time plaintiff’s lien became effective. Chapter 168, Laws of 1907, became effective a year after this
Rehearing
On Petition for Rehearing.
Appellants filed a petition for rehearing, challenging as judicial legislation consideration by the court of the common law priority of this common-law artisan’s lien, and maintaining that because of § 6295, Rev. Codes 1905, in terms recognizing an artisan’s lien but silent on its priority, the court must find that no priority of such lien can exist, and that any priority must be given by statute under § 6138, Rev.
The conclusions in the main opinion are sustained by all authority, and appellant’s attack thereon loses all force in the face of the fact that common law is by statute, §§ 4003, 4004, and 4005, Eev. Codes 1905, declared to be the basic law thereby requiring statutory enactment, to be considered as but a continuation of the common law as to civil rights and liabilities. Section 4003 reads: “The will of the sovereign power is expressed (4) by the decisions of the tribunals enforcing those rules
Unless otherwise provided by statute, all “statutes are to be interpreted in the light of the common law, with reference to the principles of the common law in force at the time of their passage.” “The presumption against an intent to alter the existing law beyond the immediate scope and object of the enactment under construction applies as well where the existing law is statutory as where it is promulgated by decisions.” “The principle is recognized that an intent to alter the common law beyond the evident purpose of the act is not to be presumed. It has indeed been expressly laid down that ‘statutes are not presumed to make any alteration in the common law further or otherwise than the
But counsel in support of his contention would emphasize the fact that the territorial statute declared no priority of this lien, and that by the Laws of 1890 priority was granted, which provision was repealed in the Revision of 1895, which priority provision has been again expressly re-enacted by chap. 168 of the Laws of 1907; and counsel inquires how the double repeal and enactment on priority can be considered other than as evidencing a successive legislative expression of denial and reaffirmance of priority, and that the lien by mortgage of the appellant having attached at a time when priority of artisans’ liens was thus refused recognition and by inference denied, upon what basis can it be found that a lien at common law could exist during such interval ? In territorial times, and until the enactment of the statute of 1890' granting it, priority existed at common law, as is held in Garr v. Clements, 4 N. D. 559, 62 N. W. 640. Upon repeal of the statute of 1890, no mention of priority being made in the repealing statute, and there being nothing to positively evidence a legislative intention to the contrary, the common-law rule as to priority was revived; “the repeal of the statute, which abrogated a common-law rule revives that rule.”" Beaven v. Went, 155 Ill. 592, 31 L.R.A. 85, 41 N. E. 91; Baum v. Thoms, 150 Ind. 378, 65 Am. St. Rep. 368, 50 N. E. 357; Burleigh County v. Rhud, 23 N. D. 362, 136 N. W. 1082; Lewis’s Sutherland Stat. Constr. § 294, quoting above rale and declaring same applicable “even though there is a statute that a repeal of the repealing act shall not revive the act repealed,” similar to § 6739, Rev. Codes 1905, identical with § 20 of Civil Code of California .in force since 1872. “Where a statute repeals the common law, and is then itself repealed, the common law is revived, and the authorities say that if a statute that is declaratory of the common law is repealed the common law more clearly
The petition for rehearing is denied.