Universal C. I. T. Credit Corp. v. Walters
53 S.E.2d 520
N.C.
1949
Check Treatment
BaiíNhill, J.

Thе rule of comity, the effect of the Uniform Sales Act on the law of registration and the rights of the parties and other inter *445 esting questions have been attractively and ably presented by counsel.» However, it is conceded that the one question posed for decision is this: If the nonresident owner of an automobile, whiсh is subject to a conditional sale contract, temporarily has the automobile in this State, is a lien thereon, acquired by levy under execution in this State, suрerior to the lien of the conditional sale contract? It would seem to us that the answer is no, without regard to whether the conditional sale contract is or is not registered in this State. That is, neither our registration statute nor the rule of comity has any substantial bearing on the question presented.

Illinois has adopted the Uniform Sales Act, Illinois Rev. Stat. of 1947, Chap. 121%, and the contract was registered in the office of the Secretary of State of Illinois as therein required. This Act reсognizes the validity of conditional sales contracts and specifically provides that no title can be passed by the purchaser of -goods under suсh a contract without the consent of the owner “unless the owner of the goods is by his own conduct precluded from denying the seller’s authority to sell.” Sherer-Gillett Co. v. Long, 149 N.E. 225; Gordon Motor Finance Co. v. Aetna Accept. Co., 261 Ill. App. 536. Under such agrеement, title never passes to the purchaser but is reserved to the seller even though there is an actual delivery, the possession of the purchaser being the possession of the seller. Ford Motor Co. v. Investment Co., 14 N.E. 2d 306. The rights of one who acquires title through the purchaser are subordinate ‍‌​‌‌​​‌‌‌​​​‌​‌‌​​​​‌‌​​​​‌‌‌​‌​​‌​‌‌‌‌‌​‌​​‌​​​‍to the rights of the original vendor under the conditional sale contract. Sherer-Gillett Co. v. Long, supra; In re Abell, 19 F. 2d 965.

This being true, plaintiff insists that its lien takes priority under the rule of comity. But comity is not permitted to operate within a State in opposition to its settled policy as expressed in its statutes, or so as to override the express provisions of its legislative enactments. Applewhite Co. v. Etheridge, 210 N.C. 433, 187 S.E. 588; Ritchey v. Southern Gem Coal Corp., 12 F. 2d 605. Our Legislature in enacting our rеgistration statutes, G.S. 47-20, 23, made no exception in favor of a conditional sale contract or chattel mortgage executed and effective in another State where the property embraced in such instrument is subsequently brought into this State.

However, the requirements of our statute have no applicatiоn to personal property in transit through or temporarily within the State. It provides, in respect to personal property, that no mortgage shall be vаlid at law to pass any property as against creditors or purchasers for a valuable consideration from the donor, bargainor, or mortgagor but from the registration of such mortgage in the county where the donor, bar-gainor, or mortgagor resides; or in case the donor, bargainor, or mortgagor resides out of the State, then in the county where the said ■personal *446 estate, or some part of the same, is situated. G.S. 47-20; and the provisions as to mortgages apply to conditional sales contracts. G.S. 47-23.

“Where the said personal estate, or some part of the same, is situated" signifies something more than the mere temporary presence of the property within ‍‌​‌‌​​‌‌‌​​​‌​‌‌​​​​‌‌​​​​‌‌‌​‌​​‌​‌‌‌‌‌​‌​​‌​​​‍this State. “Situated” means having a site, situation or location; permanently fixed; located. Webster’s'New International Dictionary; Okla homa City v. District Ct., 32 P. 2d 318, 93 A.L.R. 489; State Bank v. Nat. Bank, 166 S.W. 499. See also 39 Words and Phrases, perm, ed., p. 350. “It connоtes a more or less permanent location or situs, and the requirement of permanency must attach before tangible personalty which has been rеmoved from the domicil of the owner will attain a situs elsewhere.” Brock & Co. v. Board of Supervisors, 65 P. 2d 791, 110 A.L.R. 700; Motor Sales, Inc. v. Lay, 3 S.E. 2d 190; Flora v. Motor Co., 193 P. 545; Bankers’ Finance Corp. v. Motor Co., 91 S.W. 2d 297; C. I. T. Corp. v. Guy, 170 Va. 16, 195 S.E. 659.

Brumer is admittedly a nonresident of this State, and the automobile was not situated in this State within the meaning of our registration statute. Hence there was no plsice in this State where the conditional sale contract could have been registered so as to give constructive notice to creditors and purchasers for value.

It would be manifestly unjust to hold that the mere crossing of the State line in the ordinary use of a mortgaged chattel subordinates the mortgage lien to other claims unless the mortgagee shall record his mortgage in every county in every State where the mortgagor is likely to go. Such a conclusion would create an intolerable situation and the attendant expense would be so burdensome that it would no doubt close thе market for loans on motor vehicles.

It imposes less hardship to require a person who deals with another in respect to specific personаl property ‍‌​‌‌​​‌‌‌​​​‌​‌‌​​​​‌‌​​​​‌‌‌​‌​​‌​‌‌‌‌‌​‌​​‌​​​‍to inquire where he lives than to compel the original vendor to foresee where he will take the chattel. Acceptance Corp. v. Rogers, 142 S.W. 2d 888. Indeed, he must ascertain thе residence of the one in possession in order to determine where he must look for encumbrances.

The rule of justice and common sense, if not the rule of comity, compels the conclusion that, under the circumstances here disclosed, the lien of the conditional sale contract remains supеrior to those after acquired in this State by levy under execution. Acceptance Corp. v. Rogers, supra; Finance Co. v. Motor Co., supra. The lien of a mortgage or conditional sale contract validly executed and' legally registered according to the laws of the State wherein the property was and the mortgagor resided will be recognized and enforced in this State against the claims of attaching creditors when the presence of such prоperty in this State is of such a *447 temporary or transient nature that it bas not ‍‌​‌‌​​‌‌‌​​​‌​‌‌​​​​‌‌​​​​‌‌‌​‌​​‌​‌‌‌‌‌​‌​​‌​​​‍come to rest in the- State so as to acquire a situs here. See H.B. 185, Session Laws of 1949.

Brumer owned only an equity of redemption. That interest alone, as against' plaintiff, was subject to sale under execution. As said by Stacy, J. (now Q. J.) in Spence v. Pottery Co., 185 N.C. 218, 117 S.E. 32: “A judgment creditor, or even a purchaser at an executiоn sale, acquires no greater lien or interest in the property of the judgment debtor than the latter had at the time the judgment lien became effective.” Thе lien of the judgment or attaching creditor “is limited to and can rise no higher than the interest of the debtor; a stream cannot rise higher than its fountain. A purchaser undеr an execution takes all that belongs to the debtor, and nothing more.” See also Sherer-Gillett Co. v. Long, supra; General Motors Accept. Corp. v. U. S., 23 F. 2d 799.

“Wherе one of two persons must suffer loss ... he who ... by his negligent conduct made it possible for the loss to occur, must bear the loss,” Bank v. Liles, 197 N.C. 413, 149 S.E. 377, is the underlying philosophy of the registratiоn statute. A mortgagee who negligently fails to record his mortgage and thereby induces or permits a creditor or purchaser to deal with the mortgagor in respect to the mortgaged property as if it was his own must suffer any resulting loss. But here plaintiff ‍‌​‌‌​​‌‌‌​​​‌​‌‌​​​​‌‌​​​​‌‌‌​‌​​‌​‌‌‌‌‌​‌​​‌​​​‍has been guilty of no negligence. Nor has appellant suffered any loss by virtuе of the fact plaintiff’s lien was not recorded in this State. He is in exactly the same situation he was before execution was issued. Hence, he is in no position to invoke the protection of the registration statute.

A careful examination of the original record in Truck Corp. v. Wilkins, 219 N.C. 327, 13 S.E. 2d 529, discloses that the opinion in that case is directly in point. There the owner of the truck lived in Florida. The plaintiff held a title retention note duly registered in that State. The truck was brought to this State where it was seized under writs of attachment. There is nothing in the record tо indicate that the property had acquired a situs here. We held that the lien of the title retention note was superior to the liens acquired by the attaching creditors.

The last paragraph in the opinion in that case was not material to the issue there presented. In this connection it must not be understood we suggest that the rule would be different, as between the lien acquired by levy under execution or attachment on the one hand, and the lien of a duly registered conditional sale contract on the other, if the property had acquired a situs here. We confine decision to the question presented and leave the other for its proper day.

For the reasons stated, the judgment below is

Affirmed.