Block v. . Dowd

Fubches, J.: This is a civil action for the possession of a bicycle which the plaintiff bought of the defendant upon the instalment plan. The plaintiff has paid the defendant the price agreed upon, except the sum of $12. This he tendered to the defendant before he commenced this action, and kept the same good to the time of the trial. The wheel was delivered to the plaintiff at the time of the purchase. But the sale was a conditional one, and the property in the wheel was to remain in the defendant until all the purchase money was paid' — thus placing the plaintiff in the attitude of a mortgagor and the defendant in the position of a mortgagee. After the plaintiff had been in possession of the wheel for some time, he broke the same and took it to the defendant for repairs. The defendant had the repairs made, for which he charged $16, and returned the wheel to the plaintiff. After the repairs were made, the plaintiff made a part of the payment, which he claims reduced the amount due to $12. And it is admitted that if all the payments are to be credited on the purchase price, the amounts still due would be only $12. There was some question as to whether all these payments had been credited on the purchase price of the wheel or not. But it was agreed by counsel, who argued the case for plaintiff and defendant, that this appeal depended on the defendant’s right to retain the wheel (which he had taken from the possession of the plaintiff against his consent and protest) until both *404 debts were paid — the defendant claiming that be bad tbe right to bold tbe property, not only for tbe payment of tbe $12 balance due on tbe purchase price of tbe wheel, but also for tbe $16, tbe price of tbe repairs which bad not been paid. This being so, we will not discuss tbe question of tender, nor the application of tbe money paid by tbe plaintiff. Tbe defendant places this contention of bis right to retain the wheel until both debts are paid, on two grounds: • First, Tbe right to retain tbe wheel for repairs, under tbe common law right of mechanics- to retain tbe property repaired until the charges for such repairs are paid. And, secondly, upon tbe ground' that be occupies tbe ground of a mortgagee in possession, and is entitled to pay for necessary repairs to the premises while in possession. The' court below sustained these contentions, and from a judgment in favor of tbe defendant tbe plaintiff appealed. Tbe defendant’s first contention cannot be sustained, for tbe reason that if be ever bad a mechanic’s lien for repairs, it w as discharged when be delivered tbe vt heel back to tbe plaintiff after the repairs bad been made. McDougall v. Crapon, 95 N. C., 292. The defendant’s second ground cannot be sustained. If tbe defendant bad necessarily expended money to perfect tbe plaintiff’s title to the wheel, which stood as a security for bis debt, be would have been entitled to have this paid back before-the plaintiff would be entitled to tbe wheel. That is, this would have been a "superior equity to tbe plaintiff, and must have been paid. Bank v. Clapp, 76 N. C., 482. But this is not tbe case, as there is no question of title here; and if there bad been, as tbe plaintiff bought of tbe defendant, tbe defendant would have been entitled to nothing for perfecting the same. It cannot be sustained upon the ground that the defendant was a mort *405 gagee in possession and put necessary repairs upon the premises. This doctrine, as we understand it, applies where the mortgagee is in possession of the mortgaged premises, receiving the rents and profits in discharge of his debt, and for which he is bound to account to the mortgagor. It is said in such cases that he is entitled to have such necessary repairs allowed in his account. This doctrine seems to obtain in mortgages of real estate. But we do not say but what the same doctrine would obtain in the mortgage of personal property, where the mortgagee was in possession of the mortgaged property that was yielding a profit for which he would have to account to the mortgagor. We see no reason why it should not. But in this case, if the defendant is to be considered as a mortgagee in possession, it was of property that was yielding no rents or profits for which be was to account. There is error. New Trial.