Perkins v. Boardman

Merrick, J. It is stated in the bill of exceptions that the mortgage under which the plaintiff claims was duly executed on the 29th of May 1856. It was also at the same time duly recorded. This appears upon inspection of the memorandum upon the instrument by the proper recording officer, and by the concessions of the defendants’ counsel at the argument in this court of the questions of law arising in the case. Upon the facts reported in the bill of exceptions in relation to keeping and furnishing supplies for the mare by the defendants, and the contract between them and the mortgagor on that subject, there can be no doubt but that, at the time of the execution and record of the mortgage, they had a lien upon the [483] animal mortgaged to the amount of their reasonable charges for the supplies then and afterwards to be by them furnished in the way of the animal’s subsistence. To complete the right of lien, it is essential that the possession and right of possession of the goods pledged should be continued and uninterrupted. A relinquishment of the possession of property, by the party in whose favor a lien or pledge exists to the general owner is %n abandonment, and operates as an immediate release of it. Forth v. Simpson, 13 Ad. & El. N. R. 680. Bigelow v. Heaton, 4 Denio, 496. Bailey v. Quint, 22 Verm. 464. A lien may perhaps be renewed by the return and restitution of the property ; but in such case it will be subordinate to any intervening incumbrance to which the property in the mean time has become subject. This rule, applied to the facts upon which the questions in controversy between the parties arise, is decisive in determining their respective rights. By the mortgage to him the plaintiff acquired a good title to the mortgaged property, but subject to the defendants’ then existing right of lien. After this time, however, the mare was repeatedly, by their permission and consent, suffered to be taken by the mortgagor into his possession, to be used by him at his pleasure in carrying on the particular business in which he was engaged. This, as against the plaintiff having rights under his duly recorded mortgage, was such a relinquishment of possession as extinguished and discharged the previously existing lien. The mortgage then became prior in right, and the incumbrance created by it continued without interruption, disturbance or discharge from and after the time when this lien was lost; and the mortgagee thereby acquired a paramount right and title to the property. Rev. Sts. c. 74, § 5. St. 1843, c. 72, §§ 1, 2. Bracket v. Bullard, 12 Met. 308. The court therefore erred in instructing the jury that the defendants were entitled to set up their lien againt the rights of the plaintiff acquired by the mortgage to him; and his exceptions must accordingly be sustained. jExceptions sustained.