5 P.2d 73 | Cal. Ct. App. | 1931
On December 27, 1927, plaintiff commenced this action against respondent Benbow and one Mary Bell Lewis to recover possession of certain described personal property, consisting of furniture, screens, pictures, etc. Plaintiff was the owner of a chattel mortgage on said personal property, which mortgage had been given to him in the year 1922 by Mrs. Lewis, owner of the property, and which property, at the time of commencement of this action, was in possession of respondent Benbow. By means of a claim and delivery proceeding the property was placed in possession of the sheriff, who then sold it at public sale held pursuant to the decree of foreclosure of the chattel mortgage, and plaintiff became the purchaser. At the time when the property was taken away from respondent under the claim and delivery proceeding, respondent Benbow was in possession of said personal property claiming the right to hold such possession for the protection and enforcement of a lien arising out of repairs and storage of the property by respondent for Mrs. Lewis. By his answer to the complaint in this action respondent asserted his right to said lien for storage and repairs, claiming that his rights in the premises were superior to those of the plaintiff. Judgment was rendered in favor of respondent and the plaintiff appeals therefrom.
The property in question had come into possession of respondent in August, 1924, in accordance with a written contract between respondent and Mrs. Lewis. The storage and repair charges, referred to in the answer and findings herein, were provided for and authorized in said contract. The facts concerning the storage and repairs and the value thereof were found by the court, which findings are sustained by the evidence. It thus appears that the principal question in this case is a question of priority of right as between the owner of the chattel mortgage and the person holding possession of the personal property described in the mortgage, the possessor claiming to hold for the protection *320 of a lien for storage and repairs, later in its date of origin than the said chattel mortgage.
[1] Appellant's first point is that the court should have sustained his "demurrer to the affirmative matter set up" in the said respondent's answer. We think that the answer was sufficient to raise the issues which were tried by the court.
[2] Next it is contended that the statute of limitations has run as against respondent's claim of lien for alleged work and services; also that the claim for storage was barred as to each and every month within the first four years of the original lease providing for monthly payments for the storage. The repair work was commenced in September, 1924, and completed in March, 1925. The lease in which the contract for storage was contained was a five-year lease beginning August 1, 1924. The liens for repairs and for storage, respectively, are statutory liens. (Civ. Code, secs. 3051 and 1856.) Respondent never brought any action on the storage contract or to enforce the liens claimed by him. His answer to the complaint in this action was filed on January 6, 1928. In support of appellant's contention that the lien of respondent was extinguished by lapse of time, appellant refers to section
[3] Appellant in support of his contention that his chattel mortgage should be given priority over the Benbow liens relies upon Wilson v. Donaldson,
[4] Appellant contends that the judgment entered in favor of respondent, requiring that the plaintiff return to respondent the said personal property, or repay to respondent the stated value thereof, is against law, for the reason that it is not supported by any allegation in respondent's answer of the fact that the sheriff had taken the property. As hereinabove noted the fact is, that at the time when defendant's answer was filed, the property had been taken from respondent by means of plaintiff's claim and delivery proceeding in this action, and the property had been sold pursuant to the decree of foreclosure of the chattel mortgage. At the trial these facts were stated to the court by counsel for appellant, and there was no dispute about it. While respondent's answer did not, in direct terms, state that the property had been seized and taken from him by means of the claim and delivery proceeding, his answer did contain a prayer for recovery of possession of the property, or for the sum claimed by him. Section
The judgment is affirmed.
Houser, J., and York, J., concurred.
A petition for a rehearing of this cause was denied by the District Court of Appeal on December 12, 1931.