DISSENTING OPINION. The question is whether a strict and literal construction shall be given to Section 3102, Code 1930, and whether only a third person who literally and strictly "shall claim to be the owner or entitled to the possession of goods or chattels taken under a writ of replevin" may be allowed to intervene; and whether so even as to a mechanic who has a claim admittedly superior to either of the original parties to the action.
It is easier, of course, to decide cases and to write opinions by floating down stream, in a course of least resistance, upon the restful support of a literal interpretation. But our books are full of cases where the Court has looked beyond the mere letter of statutes and has administered them according to the justice of their purpose; and so far as the claims and right of mechanics are concerned, it has been a consistent part of the established jurisprudence of this State, beginning as far back as Buck v. Brian, 2 How. 874, decided a hundred years ago, that the claims of mechanics shall be favored in the law and that courts shall give statutes a free, and not a strict or literal, interpretation in their favor, — that statutes *Page 693 ought to be interpreted in the spirit of giving full protection to the laborer rather than to postpone him while others, inferior in actual right, are being first served.
Undoubtedly any person who holds a chattel mortgage or other lien which upon condition broken gives him the right of possession would have the right to intervene, although his possession would not be as owner but only as holder for the security of his debt. Such a person would have no right to use the property, but only the right to dispose of it or have it disposed of to make out of it the money due him, the disposition to be in such manner as shall take care in respect to the equitable rights of the opposite party. Such a person upon condition broken may replevy the property, but his right remains only that of a mortgagee or lien holder, the property to be dealt with only in accordance with that interest. Such a lien holder has the right to have the property taken by the sheriff under a writ of replevin, and when so taken, it is for the benefit of the lien holder as such, not as owner.
Likewise a mechanic who has repaired a chattel has the right to enforce his lien by a proceeding under Section 2243 et seq., Code 1930, which confers upon him the right to have the property taken by the sheriff under the writ there provided; and when so taken, it is for the benefit of the lien holder as such, not as owner. And in either case under Section 2251, the defendant or the lien holder may give bond and take possession under such bond, precisely as is done in replevin cases; and the disposition when bond is given, is as is provided for in like cases in replevin.
Since, therefore, the lien holder, whether he be a mortgagee, or the vendor in a conditional sales contract, or a mechanic who has made essential repairs on the chattel, has the right to have the property taken into the possession of the sheriff, this possession to be for the benefit of *Page 694 the lien holder, not as owner but for the making of his debt out of the property; and when possession is so taken by the sheriff the lien holder, whether a mortgagee, or the vendor in a conditional sales contract, or a mechanic who has made essential repairs may bond the property and take it into his possession — the rights of the parties when the sheriff has taken possession become the same, which is to say, the property is held for the benefit of the lien holder and out of which to make the lien holder's money.
In this case the sheriff had taken the property, and when he took it the object of the proceedings was to make the money alleged to be due the conditional sales lien holder. The mechanic asserting a superior lien and the right to make his money out of the same property seeks to intervene. The property having then been brought into the charge of the law, what real reason is there to talk of possession, when the only purpose which possession is then to serve is the purpose to make the lien holder's money out of the property, and why shall the intervenor who has the superior lien be turned out while those inferior to him shall go hence with the property?
The mechanic may not, strictly or literally speaking, be entitled to the possession of the property, but he has the right to have the sheriff take possession of it for his benefit, and that benefit is to have his money made out of it. And that is all the benefit any other lien holder has in the property, even including the vendor in a conditional sales contract, and is all he can get out of it even when he has actual possession.
It is, therefore, within the substance of the statute to say that a person, for the purposes of intervention, has a right to possession when he has the right to have the possession taken by an agent, designated by law, for him; and this would align this Court with what appears to be *Page 695 the unanimous voice of all the texts on the subject that the holder of a superior lien has the right to intervene in replevin and especially should this be sought to be done when a cumbersome and expensive circuity of action is thereby avoided, to say nothing of cases which otherwise could be so manipulated as to defeat the mechanic entirely, so far as any substantial results to him would be concerned.
It is a well settled rule of the common law that chattels in the custody of the law, unless under a void procedure, cannot be taken from that custody by a proceeding in some other case brought by a third party. If, then, the mechanic could not proceed to have the sheriff take the property in a suit instituted by the mechanic, when the property is already in custodia legis, the original parties to the replevin suit could refuse to bond, and, by agreement between themselves, could delay the final determination of that suit and keep the mechanic waiting indefinitely, or else he could have to resort to equity, and there he would be met with the question of jurisdiction which is raised in Academy, Chamberlin, Hunt v. Port Gibson Co.,80 Miss. 517, 526, 32 So. 116, 484 and Pollard v. Phalen, 98 Miss. 155, 158, 53 So. 453.
The strict or literal interpretation to which the affirming judges are adhering, instead of favoring the mechanic, as our jurisprudence requires, results in his distinct, and in some case in his disastrous, disfavor. Instead of so doing the statute should be so interpreted as to bring him within the meaning of the possessory provision of Section 3102. Although he may have parted with actual possession, his lien is retained, Section 2257, Code of 1930, and, as already mentioned, this lien gives him the right to have the sheriff take possession for his benefit under Section 2243 et seq., Code 1930, whereupon his rights would be precisely the same as had he never surrendered *Page 696 actual possession. See Section 2255, Code of 1930.
It is said however, that the form of judgment prescribed by Section 3104, Code 1930, is unsuited to an intervenor such as a mechanic. It is pointed out that the judgment prescribed in that section in the event that the third party is successful in maintaining the issue in his behalf, is that he recover possession of the property, or on the bond if the property had been bonded; while the right given to a mechanic is not to receive the property itself, but only that the sheriff shall have it for him and to have an order for the payment of the amount due him and for a sale of the property to make the amount.
There is no difficulty there on account of the power of the court to enter the proper judgment, the rule being that when a particular court has been given jurisdiction in any particular proceeding to adjudicate the substantive merits of any particular propounded claim, there goes with this jurisdiction, as a necessary incident to its exercise, the power to pronounce and enter the judgment which will correspond to the merits of the right so adjudicated, and that any form laid down for the judgment must be considered as advisory or directory and not as absolute or mandatory. Moreover, the broad and inclusive provisions of Sections 605 and 606, Code 1930, as to the entry of such judgments as may be necessary to the adjustment of the rights of the parties litigant furnish a sufficient answer to the contention about the mere form of the judgment.
The difficulty on account of the language of Section 3104 is that it gives weight to the consideration that it was contemplated by the replevin statutes that only persons entitled to take the property into their actual possession should come within those statutes. But we have already pointed out that lien holders entitled to possession after condition broken are within these statutes, *Page 697 although their possession is not as owners but as security holders, and that all they can do with the property when possession is delivered to them is to sell it in a fair manner at a fair price, first to pay themselves and the balance to the opposite party. The only difference then between the lien holders mentioned and the holder of the mechanic's lien is that in the former the lien holder makes the sale for the benefit of the parties, while in the latter the sheriff makes the sale for the benefit of the parties, a difference which may be of interest to legal analysis but which ought not to be considered of sufficient substance to make it of controlling weight in the practical and prompt administration of justice. As against any such a thin and insubstantial difference, we should recur to the settled policy already mentioned, that mechanics are favored in the law, and that courts will give statutes a free interpretation in favor of the laborer, and to the policy evidenced in our entire statutory system, that immediately related controversies should be settled in one action or suit whenever reasonably practical so to do, and without needless and needlessly expensive circuity.
Anderson, J., and Ethridge, P.J., concur herein. *Page 698