Baum v. WM. Knabe & Co. Manufacturing Co.

Mr. Chief Justice Shepard delivered the opinion of the Court: Contracts of the kind proved in this case are valid, though unrecorded, except “as against third persons acquiring title to said property from said purchaser without notice of the terms of said sale.” Code, sec. 547 [31 Stat. at L. 1275, chap. 854]. Appellants had no dealings with, and made no purchase from, Johnson himself. If they have any right of property in the piano at all, it is by virtue of the sale of the same as his property, to pay the storage charges thereon. In determining the validity of that sale, it is unnecessary to pass upon the question whether creditors of the vendee in a contract' of conditional sale, as well as purchasers from him without notice, are entitled to the benefit of sec. 547. We may assume for the purposes of this case, without so deciding, that Johnson deposited the piano with the storage company, and was actually indebted to it for charges thereon, although there is no evidence that such was actually the case; and further, that the storage company, as a creditor of Johnson to the extent of such charges, was entitled to enforce a lien therefor, by sale, as against the right of appellee under the unrecorded conditional sale. Section 1619 of the Code [31 Stat. at L. 1432, chap. 854] gives warehousemen a lien for storage charges, and provides for its enforcement as follows: “Said lien for such unpaid charges upon at least one year’s storage, and for the aforesaid advances in connection therewith, may be enforced by sale at public auc [241] tion, after thirty days’ notice in writing, mailed to the last known address of the person or persons in whose name or names the said property so in default was stored, and said notice shall also be published for six days in a daily newspaper in the District of Columbia.” The storage company acquired no title to the piano from Johnson, and was invested with no power of sale by him. All that it took from him was possession for safe-keeping; but the statute conferred a lien upon the piano for the storage charges that would accrue for such service, with summary power of enforcement of the same by sale upon compliance with certain conditions. It was a mere statutory power, uncoupled with an interest, “and, in all such cases, the law requires that every prerequisite to the exercise of that power must precede its exercise; that the agent must pursue the power, or his act will not be sustained.” Williams v. Peyton, 4 Wheat. 77, 79, 4 L. ed. 518, 519. The title involved therein was acquired under a sale for taxes. It was further said in that case: “If the validity of a deed depends on an act in pais, the party claiming under that deed is as much bound to prove the performance of the act as he would be bound to prove any matter of record on which its validity might depend.” See also Ransom v. Williams, 2 Wall. 313, 319, 17 L. ed. 803, 805; Deputron v. Young, 134 U. S. 241, 256, 33 L. ed. 923, 930, 10 Sup. Ct. Rep. 539. The statute conferring the lien in cases like this prescribes two prerequisites to a sale for its enforcement; namely, thirty days’ notice in writing to the depositor of the goods, and publication in a daily newspaper for six days. Neither of these prerequisites was complied with. There was no evidence whatever relating to notice to Johnson, and the proof showed publication in a daily newspaper for two days only instead of the six that were required. By reason of the failure to observe the statutory requirements, the sale was absolutely void. It passed no title or interest out of Johnson, and could not, therefore, affect any right which the appellee had under its contract with him. In the few cases that have come under our observation in [242] which titles acquired by purchase under similar statutes, were involved, the sales were held void for failure to observe the prescribed procedure in respect of notice. Jeffries v. Snyder, 110 Iowa, 361, 365, 81 N. W. 678; Robinson v. Wappans, 34 Misc. 199, 68 N. Y. Supp. 815; Sand v. Rosenagel, 40 Misc. 666, 83 N. Y. Supp. 255. There was no error in directing the verdict in this case, and the judgment must, therefore, be affirmed with costs. Affirmed.