Willis v. . Taylor

BeogdeN, J. Is a mechanic’s lien for work done on an automobile by the procurement of the second mortgagee or lien holder, superior to the rights of the first mortgagee? No point is made as to whether W. R. Willis, the mortgagor, was in default upon his payments on the first mortgage, payable to his brother, B. G. Willis, the plaintiff in this action. The car was in the possession of the mortgagor apparently with the consent and approval of the holders of both the first and second liens. Upon this state of facts the defendants contend that by virtue of provisions of O. S., 2435, the mechanic’s lien for repairs on said car has priority over the claim of *469 the plaintiff, the holder of the first mortgage or lien. It was decided in Johnson v. Yates, 183 N. C., 24, 110 S. E., 603, and in Sales Co. v. White, 183 N. C., 671, 110 S. E., 607, that if a mortgagor of an automobile was permitted to hold possession thereof and nse the same, such mortgagor had implied authority to contract for repairs upon the ear and the lien prescribed by C. S., 2435, for such repairs, was entitled to priority over the claim of the holder of the first mortgage. The decision was built upon the idea that a mortgagor was such “owner or legal possessor of such property” as to make a valid contract for repairs, thus giving priority to the mechanic doing the work. The law as announced in the Yates case interpreted the words “owner or legal possessor of such property” to include “all owners of property and all persons in possession and use of same with the knowledge and assent of the owner and under circumstances giving express or implied authority from him to have such reasonable and necessary repairs made as may be required in the use of the property contemplated by the parties.” In the case at bar the second mortgagee or lien holder was never in possession of the property and never used the same. Hence it was not the “owner or legal possessor of such property” within the contemplation of C. S., 2435. See Harris v. R. R., 190 N. C., 480, 130 S. E., 319; Motor Co. v. Motor Co., 197 N. C., 371, 148 S. E., 461; Reich v. Triplett, 199 N. C., 678, 155 S. E., 573. It follows, therefore, that the instruction given by the trial judge was correct. Affirmed.