Opinion
5 Div. 646.
February 1, 1927. Rehearing Denied March 8, 1927.
Appeal from Circuit Court, Elmore County; Leon McCord, Judge.
Attachment suit by Gilliland Bros. against A. K. Graham, with intervention of claim by Tallassee Motor Company and others. From a judgment for plaintiff, claimants appeal. Reversed and remanded.
Certiorari denied by Supreme Court, 216 Ala. 257, 112 So. 759.
Oakley W. Melton, of Wetumpka, for appellants.
One can create a lien upon property only to the extent of his title or interest therein; and a conditional purchaser, so long as the condition has not been performed, cannot, without the consent of the owner, create a lien on the property paramount to, or which will impair or divest, the title of the owner. Alexander v. Mobile Auto Co., 200 Ala. 586, 76 So. 944; Alford v. Singer S. M. Co., 17 Ala. App. 325, 85 So. 584; Ex parte Alford, 204 Ala. 697, 85 So. 921; Brooks v. Dial, 214 Ala. 267, 107 So. 744; Brunswick-Balke-Collender Co. v. Starnes, 214 Ala. 263, 107 So. 743; Blackman v. Engram, 214 Ala. 262, 107 So. 741. The rights of a conditional vendor under an unrecorded conditional sale contract are of full force as against the claims of a creditor of the conditional vendee, unless such creditor comes within one of the classes protected by the statute. Code 1923, § 6898; Alford v. Singer Co., supra; Van Ausdle v. Jain, 39 Idaho, 563, 228 P. 342; Neitzel v. Lawrence, 40 Idaho, 26, 231 P. 423; Continental Supp. Co. v. Gillespie (Tex.Civ.App.) 269 S.W. 859; Vandalsem v. Caldwell, 33 Ga. App. 88, 125 S.E. 716. Consent from conditional vendor that repairs be made so as to create a paramount lien cannot be implied from the mere fact of delivery to the vendee. Campbell M. Co. v. Stanfield, 214 Ala. 506, 108 So. 515; Walden Auto Co. v. Mixon, 196 Ala. 346, 71 So. 694; Huddy on Automobiles (7th Ed.) § 1179; Atlas Sec. Co. v. Grove, 79 Ind. App. 144, 137 N.E. 570; Providence Buick Co. v. Pitts, 45 R.I. 145, 120 A. 583; Neitzel v. Lawrence, supra. A bill of exceptions is in time, if presented within 90 days from judgment on motion for new trial. Farmers' Bank v. Gibson, 21 Ala. App. 389, 108 So. 628; Code 1923, § 6433.
Huddleston Glover, of Wetumpka, for appellee.
Where property, as machinery, is to be retained and used by the mortgagor for a long period of time, it will be presumed to have been the intention of the parties to the mortgage that it is to be kept in repair, and, when the property is of such character as to render it necessary to intrust it to a mechanic to make repairs, the mortgagor will be constituted the agent of the mortgagee to have such repairs made, and the lien of the mechanic is paramount to that of the mortgagee. Partlow-Jenkins Motor Co. v. Stratton, 71 Ind. App. 122, 124 N.E. 470; Mathers v. Barrow, 202 Ala. 342, 80 So. 424. Where the bill of exceptions is not presented to the trial judge within 90 days from the date judgment was rendered, same will be stricken on motion of appellee. Code 1923, §§ 6433, 6434; McMillon v. Skelton, 208 Ala. 693, 95 So. 148; Sloss Co. v. Sampson, 204 Ala. 240, 85 So. 501; Birmingham Waterworks v. Justice, 204 Ala. 547, 86 So. 389.
The claimant sold a truck to Graham, taking notes therefor reserving and retaining title in the seller (claimant here). While the truck was in Graham's possession, and being used by him, he procured plaintiff to repair same; the amount of said repairs being the amount of plaintiff's claim here. The retention title note was not recorded nor did plaintiff retain possession of the truck after repairing same, but delivered it to Graham. The notes being in default, claimant repossessed the truck.
Failing to retain possession of the truck, the plaintiff could not enforce his common-law lien, but is remitted to his rights, if any, under section 8863 of the Code of 1923. Alexander v. Mobile Auto Co., 200 Ala. 586, 76 So. 944; Walden v. Mixon, 196 Ala. 346, 71 So. 694.
The conditional sale of the truck between claimant and Graham was not void, and, without the consent of the owner of the title, either express or implied, Graham had no power to contract in such manner as to fix a lien on the truck, as against the rights of claimant. Walden Auto Co. v. Mixon, 196 Ala. 346, 71 So. 694; Alexander v. Mobile Auto Co., 200 Ala. 586, 76 So. 944.
Plaintiff not being a purchaser for a valuable consideration, mortgagee landlord with a lien, or judgment creditor without notice, is not protected by section 6898 of the Code of 1923, requiring the recording of certain contracts.
There was no evidence from which the court could infer that the repairs were being made by plaintiff with the knowledge or consent of claimant. As against claimant this plaintiff had no lien on the truck. Campbell M. Co. v. Stanfield, 214 Ala. 506, 108 So. 515.
The judgment is reversed, and the cause is remanded.
The bill of exceptions was presented within 90 days from the date of the overruling of the motion for new trial. The motion to strike the bill of exceptions is overruled. Code 1923, § 6433.