Bernstein v. Schelben

*720 Holden, P. J., delivered the opinion of the court. This suit was brought to enforce a mechanic’s lien against certain machinery, in a brick plant, which was repaired by the appellee, Schelben, while it was in the possession of the mortgagor. The land and machinery were subsequently purchased by the mortgagee, Bernstein, under a foreclosure sale; the mortgage being *721 against the land and the machinery, which mortgage was executed and duly recorded before the repairs were made by the mechanic. The question presented for our decision is whether or not a mechanic’s lien for repairs upon machinery in a brick plant operated by the owner, upon which a prior mortgage had been given, is superior to a lien of the mortgagee and purchaser at a foreclosure sale, where the repairs were necessary for the preservation and operation of the machinery, and where the machinery repaired “was affixed to the soil and was a fixture.” The agreed statement of facts in the case is as follows: 4 4 Fred Schelben, doing business under the name of the Greenville Boiler & Machine Works, performed certain services for Juliet B. Hartshorn, who was, at that time, doing business as the Delta Brick Company. Said services were rendered over a period from F'ebruary 7, 1925, to November 9, 1925, and consisted in welding various and sundry portions of the brick machinery plant, the furnishing of material, and the performance of services in connection with the repair of the various machines in the brick plant. The articles furnished and the repair and work done were all necessary for the preservation and continued operation of such machinery. The machinery repaired was affixed to the soil and was a fixture. At the time the service was rendered the machinery was in the sole possession and use of Juliet B. Hartshorn, and the legal title to the same was vested in her. The major machinery was at all times left in the plant, but the various portions which were broken and required welding together were removed by said Schelben and repaired in his plant and then returned to said brick plant and affixed to the machinery therein. The machinery repaired was never in the possession of said Schelben. 4 4 The services rendered and repairs done amounted to three hundred sixty-six dollars and seventy-six cents, and on this account the following sums were paid: Octo *722 her 26, 1925', twenty dollars; October 31, 1925; fifty dollars; November 6; 1925; thirty dollars — leaving a balance due of two hundred sixty-six dollars and seventy-six cents. The charges made were fair and reasonable. From time to time as the services were rendered, the said Schelben charged the Delta Brick Company with the amounts due for the articles furnished, repairs done or services rendered, and statements thereof were, from time to time, rendered to the Delta Brick Company. “On January 8, 1926, the said Schelben filed his declaration and petition in the circuit court of Washington county, Miss., seeking to enforce a mechanic’s lien against the property repaired. “At the time said services were rendered and said repairs were made, there were three mortgage on said property recorded in the chancery clerk’s office of Washington county, Miss., one being in favor of H. L. Eustis, Agent, second in favor of Greenville Savings Bank & Trust Company, and third in favor of R. P. Sanders, vendor of Mrs. Hartshorn. F'or valuable consideration all three mortgages were during the year 1925 purchased by A. H. Bernstein, and the notes evidencing the indebtedness were transferred and assigned to A.. H. Bernstein; the first and second mortgages being transferred and assigned to him on tíecember 11, 1925. “None of the mortgagees, nor A. PI. Bernstein nor the trustees in said mortgages, at the times the mortgages were transferred and assigned to A. H. Bernstein, had any notice of or consented in writing to the repairs done, the material furnished, or the services performed. “On January 11, 1926, the mortgage in favor of PI. L. Eustis, agent, was foreclosed, and the property was legally sold and brought in by A. PI. Bernstein and G.. W. Gillen, and a deed conveying said property was executed on said date and delivered to A. H. Bernstein and G. W. Gillen, which deed was duly recorded in the chancery clerk’s office of Washington county, Miss., and'the title *723 to said property is now vested in the said A. IT. Bernstein and Gr. W. Grillen. “All the services rendered, material furnished, and labor done were done in pursuance of the verbal contract with Juliet B. Hartshorn, owner and mortgagor in possession of the property at that time. “It is further agreed that the following issues are presented by this agreement, and it is not necessary for the defendant to file any pleas. ‘£ (1) Whether or not Fred Sehelben has a mechanic’s lien against the property repaired. “ (2) If the said Fred Sehelben did have a mechanic’s lien, was such lien superior to the liens of the said three mortgages ? “ (3) If Fred Sehelben had a mechanic’s lien and such lien is a prior lien to the said three mortgages, whether or not the purchase on December 11,1925, by A. H. Bernstein of the indebtedness and the assignment of the mortgage to him did not render him a bona-fide purchaser or mortgagee without notice and thereby he acquired a prior lien. .£ £ The trust deeds above mentioned cover the land, building, and fixtures. The mechanic’s lien is sought only to be enforced ag*ainst the machinery repaired.” The lower court held that the mechanic’s lien was superior to the mortgage lien, and was enforceable against the machinery in the brick plant for the repairs done thereon, upon the theory, we suppose, that the machinery was personal property, and that a lien for the repairs was given under section 3075, Code of 1906; section 2435, Hemingway’s Code, under which statute the case of Broom v. Dale, 109 Miss. 52, 67 So. 659, L. R. A. 1915D, 1146, was decided. But we think the court was in error in treating' the machinery here involved as personal property, because the agreed statement of facts shows positively that it was affixed to the soil, a fixture, and was therefore real es *724 tata; and we think that if a lien existed against the machinery for repairs done thereon, it was a lien given under section 3058, Code of 1906, section 2418, Hemingway’s Code; and if it he conceded that this action is under the latter section, then the lien on the machinery, a fixture, would be subordinate to that of the mortgage, because, under section 3069, Code'of 1906:, section 2429, Hemingway’s Code, it is provided that the lien of a mechanic shall be subject to the prior incumbrance; the statute, in part, providing: “But if the house building, structure or fixture so sold, or sold with the land, shall have been' simply altered or repaired subsequently to a former incumbrance on the land, the purchaser shall acquire the same subject to such incumbrance. ’ ’ It will be observed, therefore, that the mechanic’s lien, under this section, is secondary to that of the mortgagee; and, as the record in the case before us shows that the appellant Bernstein purchased the property at a foreclosure sale under the mortgage, he takes title free of any mechanic’s lien for repairs done or material furnished. Big Three Lumber Co. v. Curtis, 130 Miss. 74, 93 So. 487. The principle announced in Broom v. Dale, supra, is sound, but it applies only to personal property that has been repaired for its preservation and operation. The principle that the mechanic’s lien is superior to prior liens does not apply to repairs on machinery which is part of the real estate, so far as prior incumbrances are concerned, unless by written consent. In the case of Big Three Lumber Co. v. Curtis, supra, the opinion indicates that the security given by a prior mortgage upon real estate is not to be impaired by a subsequent mechanic’s lien for repairs. Buildings wholly constructed upon mortgaged property may be removed therefrom to satisfy a judgment for their construction, but there is no provision giving a superior lien to me *725 chanics or materialmen for repairs upon a building as against the lien of a prior mortgage. In Moorhead v. Walker, 133 Miss. 63, 97 So. 486, in discussing the question of liens upon automobiles for repairs done thereon, with reference to the rights of the owner as against the mechanic’s lien for repairs reasonably necessary for the preservation and operation of the property, we reviewed Hollis v. Isbell, 124 Miss. 799, 87 So. 273, 20 A. L. R. 244, Broom v. Dale, supra, and other cases decided by this court which were, apparently, in conflict; and it is our opinion that, in the case at bar, the fact the machinery repaired was a fixture, was real estate, differentiates it from the other cases referred to; and while the agreed statement of facts shows that certain parts of the machinery here involved were disconnected and taken to the shop, of the mechanic, there welded and repaired, and then carried to the machinery at the brick plant, placed in position, and connected with the major part of the machinery, this does not alter the fact, agreed to by counsel, that the machinery was a fixture and part of the real estate. We think the rule announced is a proper construction of the law, and is, probably, the better rule to follow. There must be a limit as to how far the mechanic’s lien for repairs will be extended as against a prior mortgage upon the property, where the repairs are necessary for the preservation and operation of the machinery, which may be personal property, or real estate. We say that if it be real estate, the lien of the prior mortgages will be superior to that of the mechanic’s lien for mere repairs done, but, otherwise, if the repairs are necessarily done for the preservation and operation of the personal property. The judgment of the lower court is reversed, and judgment entered here for appellant. Reversed, and judgment for appellant.