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his own voluntary act, as in the in- of Johnson [the mortagee in the stant case, may bring replevin. The chattel mortgage]

was a valid words, 'any garage keeper acquiring property right, which could not be a lien under the provisions of this act,' destroyed in violation of § 2 of our which occur in § 3b, would seem to re- Bill of Rights,—that is, without due fer to such a lien as is given in § 3a,

process of law,

Our statute on mortand such a lien is only given where gages of personal property provides the motor vehicle is ‘kept by them,' that a chattel mortgage acknowledged and has been taken out of the posses- and recorded in the manner required sion of the lienor against his will." shall be good and valid from the time

And in Breene v. Fankhauser (1910) it is filed for record until the maturity 137 App. Div. 124, 121 N. Y. Supp. of the debt, provided the time does 1004, it was held that if the proprietor not exceed three years. If the Garage of a garage had a lien on an automo- Lien Act is valid, it would destroy that bile for storage and repairs, he lost lien, which is a legal and valid properthe lien by voluntarily surrendering ty right. It will be noticed that s the machine, with the possession of it. 3a provides that the lien shall not

Although garage keepers' liens have apply to property sold on conditional been extended by statute, such liens sale while the vendor remains unpaid, still depend upon possession, and so, if the contract of sale or mortgage of in Grand Garage v. Pacific Banks

the conditional vendor has been filed (1918) 170 N. Y. Supp. 2, where a for record. . . It is difficult to see garage keeper allowed the owner of any valid reason why a person holding a car to take it out from time to time, a contract of conditional sale should and the garage man delivered the car be protected and one holding a valid to the owner, who in turn delivered it chattel mortgage should not be.. to a third party to exhibit to a pro- By the agreement between the parties spective customer, the third party fail- to this chattel mortgage, embraced in ing to return it to the garage man be

and made part of that instrument, the fore the insolvency of the owner, the mortgagee on maturity of the note, or garage keeper, by thus voluntarily sooner if he felt insecure and unsafe, parting with the car, parted with his was given the right to take the proplien on the automobile for storage and erty and sell it for the purpose of supplies.

paying the note. If the lien of the c. Priority.

mortgagee can be destroyed by legisIn Jensen v. Wilcox Lumber Co.

lative enactment, the effect of the act (1920) 295 IIl. 294, 129 N. E. 133, the

would be to violate the obligations court held that the Garage Lien Act,

of contracts, contrary to the prohibiwhich purported to authorize

tion of the Federal Constitution that garage keeper to enforce a lien for

no state shall pass any law impairing storage charges, etc., which accrued

the obligations of contracts.” See after the filing on record

also Thurber Art Galleries v. Rienzi chattel mortgage on

Garage (1921) 297 Ill, 272, 130 N. E.

car, prior lien to that of the chattel mort

747, in which the act was again held gage, was unconstitutional as special

unconstitutional. legislation arbitrarily discriminating

But in Wolfman Co. v. Eisenberg in favor of one class, leaving un

(1921) 116 Misc. 43, 190 N. Y. Supp. affected others similarly situated, be- 259, it was held that, since the enacttween whom and the class favored ment of the Lien Law, giving garage there existed no reasonable basis for men liens for storage and supplies for discrimination; and furthermore, the automobiles, such a lien has priority act was unconstitutional as destroying over a purchase-money chattel mortproperty rights without due process gage previously filed to secure payof law and violating the obligation of ment for the truck. The court says: contracts, contrary to the prohibition “The plaintiff (vendor of truck to of the Federal Constitution. The bailor] knew, or was chargeable with court says:

"Furthermore, the lien knowledge, that the statute then gave







car, and

the garage

man this lien, which third party's use and control of the would attach to any automobile truck car being unknown to the garage man, placed with him. It was intended to and the owner, learning of the storage protect every keeper of a garage by of the car in the garage, notified the giving him a lien. And the plaintiff

garage man of her ownership of the could not, by its mortgage, deprive the

hat the third party would keeper of the garage of the benefit of be responsible for the storage the statute. The parties to the mort- charges, and that he (the garage gage at the time of execution thereof man) should not allow the car to be are presumed to have had the statute taken from the garage by the third in contemplation, and it is true that, party without her written consent, under well-established rules of law, and that the garage man should hold the provisions of the statute entered the car subject to her disposal, it was into the contract of mortgage. It may held that, from the date of said notibe added that the statute would seem fication, the garage man, by virtue of to be a sensible recognition by the a statute, had a lien on the automobile legislature of the fact that, under for proper charges for storage and modern conditions, particularly in the care, enforceable against the owner of centers of population, where com- the car, unless the owner could prove paratively few own private garages, prior payment of the proper charges, storage is as essential to the preserva- or tender of payment and refusal of tion of an automobile as are repairs, garage man to accept same, or such and that there is no sound reason for other conduct on his part as estopped discrimination as to the protection to him to contend that he had a lien or be afforded the garage man.”

that the plaintiff had not made sufAnd under a statute giving to a per

ficient tender. son keeping a garage for the storage, In Adler V. Godfrey (1913) 153 maintenance, keeping, or repair of Wis. 186, 140 N. W. 1115, where the motor vehicles, who in connection conditional vendee of an automobile therewith stores, maintains, etc., any mortgaged same (the mortgage being motor vehicle at the request of the filed) to a third party, who allowed owner, "whether such owner be a con- the conditional vendee to remain in ditional vendee or a mortgagor re- possession, and although the latter, to maining in possession or otherwise," the knowledge of the third-party a lien upon such motor vehicle, it was mortgagee, kept the car in a public held in Willys-Overland v. Prudman garage, it was held that the garage Auto. Co. (1922) 196 N. Y. Supp. 487, keeper did not acquire a lien for that the garage keeper did not lose storage as against the third-party his lien by permitting the owner to mortgagee, and the vendor of the use his car; and that, where the mortgagor acquired no such lien by owner, who had executed a purchase- paying the storage claim. maney chattel mortgage, continued in

d. Assignment. possession, although he had defaulted in payment of the mortgage and

In Koroleff v. Schildkraut (1919) stored the car at the garage, the

179 N. Y. Supp. 117, it was held that garage man's lien for storage, etc.,

where an owner of taxicabs stored took priority over that of the mort- them with a garage man, the latter gagee in the purchase-money mort- was bound to keep them until the exgage.

piration of the period for which they In Doody v. Collins (1916) 223 were stored, or, in the absence of Mass. 332, 111 N. E. 897, where the any definite period of storage, he owner of an automobile had permitted could not terminate the bailment the car to be registered in the name without notice to the bailor; thus, of another person and used by the where the garage man, without the latter, who stored it in a garage with- knowledge or consent of the owner, out the knowledge or consent of the assigned his lien for storage, gasoowner, the owner's conduct as to the lene, and repairs on the taxicabs to another garage man and delivered the them to a party who, in turn, sublet taxicabs to the latter, the latter could them to another party, who left them not enforce the lien which the origi- at the garage where the costs of renal garage keeper was given by stat- pairs, storage, etc., was incurred, that ute, so long as the taxicabs were in a lien could not be impressed on the his possession, and no lien in favor cars against the owner, on the ground of the assignee garage man arose for that they were stored at the garage the storage in his own garage with- and repaired by his consent, even out the consent of the owner of the though an employee of his had visited taxicabs. The court says: “The lien the garage and noticed the repairs given by the statute cannot be sep. being made upon the cars, and, in arated from the right to possession addition, had furnished new parts for of the article on which the lien exists, a portion of them, as mere knowledge and since it is clear that the garage does not imply the consent mentioned keeper could not assign to any other in the statute. To sustain this holdperson his right as bailee, and since ing the court quotes from another his only right to possession was case construing a mechanics' lien created by and existed under the con- law, as follows: “ "There is a marked tract of bailment, it follows that the distinction between the passive aclien could not be assigned."

quiescence of an owner in that he IV. Miscellaneous.

knows the improvements are being

made, improvements which in many In La Rosa v. Nichols (1918) 92

cases he has no right to prevent, and N. J. L. 375, 6 A.L.R. 412, 105 Atl. his actual and express consent or re201, the court reversing (1918) 91

quirement that the improvement shall N. J. L. 355, 103 Atl. 390, in an action be made. It is the latter that constiby an infant to replevy an automobile

tutes the consent mentioned in the from a garage man on which the latter


The evidence in this was asserting a statutory lien for case, while it might possibly show storage charges and work and sup

knowledge on the part of the defendplies, the infant admitting the mak

ant, Henry Ducasse & Company ing of the contract for storage and [owners of the automobiles), fails to repairs with the garage man, and show some affirmative act respecting admitting that he falsely represented the particular improvement from himself to be of age to the garage which its knowledge and consent may men, but seeking to repudiate the be properly inferred." Nor, says the contract in this action on the ground

court, was the knowledge or consent of infancy, the court held that the

of the lessee and sublessee sufficient minor would not be permitted to set to impress a lien on the automobiles, up the privilege of infancy, because as nothing is said in the statute about by his fraudulent conduct he had es- a lessee or a sublessee, The court topped himself from so pleading; and says: "The phrase for otherwise' this in a court at law, as well as in as used in the statute cannot be exa court of equity.

tended to mean lessee or a sublessee, Under a statute giving a lien to because, under the doctrine of ejusgarage keepers for the storage, main- dem generis, the words 'or otherwise' tenance, keeping, and repairing of can only embrace things of the same motor vehicles, where such storage,

kind or class as those with which repairs, etc., are made “at the request they are connected. A lessee or a subor with consent of the owner, whether lessee is not ejusdem generis with an such owner be a conditional vendee owner, - a conditional vendee, or or a mortgagor remaining in posses- mortgagor remaining in possession; sion or otherwise,” it was held in and, therefore, their knowledge or Lloyd v. Kilpatrick (1911) 71 Misc. consent cannot avail the plaintiff 19, 127 N. Y. Supp. 1096, where the [garage keeper] in this action." See owner of the automobiles sought to be also Leitch v. Sanford Motor Truck impressed with the lien had leased Co. (1924) Pa. —, 123 Atl. 658, for


a holding to the effect that where ied; but, after having replevied, we pledged property (an automobile) had do not think he could exercise been delivered secretly to a storage a use of the property under the recompany, a lien for storage could not plevy which would make it contribute be imposed on it.

revenue to the business pursued by In Cuneo y. Freeman (1912) 137 him, and by this process force upon N. Y. Supp. 885, it was held that a appellant (owner of the automobile) garage keeper who had actual posses- involuntary contribution to the busision of taxicabs kept in his garage ness, compelling him, contrary to his by the owner was in a position to as- wishes, thus to yield contribution sert a lien, unless he was barred from through a course pursued by appellee doing so by a former judgment fore- with reference to his property not closing a chattel mortgage on the taxi- necessary to appellee's full protection, cabs.

for which appellant had fully provided In Bemheim V. Roth (1916) 157 by a sequestration bond." N. Y. Supp. 902, the court held that In Katzman v. 'Mannie (1919) 46 a garage keeper entitled to storage Ont. L. Rep. 121, it was held that charges on an automobile has a lien where an automobile was held by a on the automobile, but if the owner garage man under the mistaken noof the car owes no storage charges, tion that he had a lien on same for and the garage man wrongfully re- repair charges, he was not entitled to fuses to deliver the car, then the re- recover storage charges against the fusal would give rise to an action of owner while he, the garage keeper, conversion.

was thus unlawfully detaining the In Hudson v. Breeding (1920) car. · Tex. Civ. App. —, 224 S. W. 718, where In Webster v. Black (1914) 24 an owner of an automobile which was Manitoba L. R. 456, 28 West. L. R. being held by a garage man for re- 300, 17 D. L. R. 15, it was held that pair charges instituted suit to recover the relationship of garage keeper was the automobile, and applied for and not changed into that of warehousewas issued a sequestration bond, and man, so as to entitle a garage keeper the garage keeper recovered the auto- to assert a lien for storage of an mobile on the same date by giving automobile, where the owner of the replevy bond, the court held that the car stored it with the garage man garage keeper was not entitled to a until a broken wheel could be relien for, and could not collect for, paired, as the owner's full enjoyment storage on the car after the date of of the use was suspended only by the the replevy, as he would have been lack of a wheel, and he was at liberty sufficiently protected by the sequestra- to take the car out as soon as the tion bond, without retaining the car wheel was fixed, and use it as he had in his possession and storing it. The previously done, it appearing that court says:

"He (garage man], of prior to the damage to the wheel he course, but exercised a legal right had been keeping it in the garage, conferred by statute when he replev- with liberty to use it as he saw fit.

R. P. D.

(- Nev. 221 Pao. 241.)

LOUISE PEDROLI, Admrx., etc., of Charles Pedroli, Deceased, Appt.,


[blocks in formation]

Executor and administrator — liability for expenses of preservation.

1. An estate is chargeable with all the expenses incurred by one acting as administrator, without authority, for its preservation.

[See note on this question beginning on page 846.] - termination of rights.

sation for the injury caused by the 2. An administrator has no right to wrong. possession of the estate after expira- [See 8 R. C. L. 431; 2 R. C. L. Supp. tion of the time when an appeal might

609; 4 R. C. L. Supp. 553.] be taken from an order relieving him Executor and administrator extent from his office, if no valid appeal is

of liability for intermeddling with taken.


6. One who intermeddles with the Appeal right of administrator. estate of a deceased person without

3. An administrator cannot appeal right is liable for all assets of the in his official capacity from an order estate which come into his hands, but removing him from office.

entitled to protection for all acts

which a rightful executor might have Executor and administrator acts done which are not for his own benepending appeal — validity.

fit. 4. An administrator who attempts [See 11 R. C. L. 461; 2 R. C. L. Supp. to appeal in his official capacity from

1257.) an order relieving him from office is a - allowance for unpaid bills. wrongdoer in attempting to meddle 7. That one who has intermeddled with the estate between the passing of

with an estate without authority has the order and the decision of the ap

not paid bills incurred for preservapeal.

tion of the estate does not prevent al

lowance to him of their amount when Damages tort measure.

he turns over the estate to the right5. The damages for tort are compen- ful administrator.

APPEAL by the administratrix from an order of the District Court for Humboldt County (Callahan, J.) approving and allowing certain obligations and expenditures made by a former administrator of the estate of her deceased husband, and from an order denying a motion for new trial. Affirmed.

The facts are stated in the opinion of the court.
Mr. L. 0. Hawkins, for appellant: his accounts for the time subsequent

No person who legally comes into to revocation of his letters, yet he is possession of the assets of an estate not entitled to bind the estate or its can be held to be an executor de son legal representative by any contracts tort in regard thereto.

which he made or expenditures which 24 C. J. p. 1213, $ 205; 11 R. C. L. p. he incurred subsequently to the revo456, § 562.

cation of his letters. But even if Scott, after his letters 11 R. C. L. 463, § 571; Lenderink v. were revoked, was in effect an execu- Sawyer, 92 Neb. 587, L.R.A.1915D, tor de son tort, and even if the pro- 948, 138 N. W. 744, Ann. Cas. 1914A, bate court had jurisdiction to settle 261; 24 C. J. p. 1218, § 291; Burke v.

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