OFFICE OF THE AlTORNEY GENERAL OF TEXAS
Honorable Homer mrriron, Jr.
Dlraotor, Dapartment of PublSo Saiety
Auatln, Texae .
Dear Sir:
or other aoou-
or eridonoe that ruoh
ih has bean 8atlrflsd.
private sale in aa-
oordanoe with the term of the mortgage, and
that suah Oertifloate 0r Title may not nata
the ssoond or inferior llene',;whioh
exl8tad
against said motor vehiole p&r to the time
of repossession and forealoeure of the prior
li0n.
Honorable Homer Harrison, Jr., Page 8
WWe now ask the tollowlng question:
*Shall the Department iesue a
Certifioate of Title against a mo-
tor vehlole upon affidavit of repoa-
session and under the olroumstanoes
outlined above, when there is ot re-
cord a first lien against tires,
radio or other aocsssorles, without
requiring from the applicant either
a notation on the application of
auoh first lien against tires, radio
or other aooassorlss, or rvfdsnae
that such first lien haa been ratis-
fied?”
Thie Department ruled in opinion No. O-1984 as
roilowe t
“By way of 8ummary, it ia the opinion of
this department that where a mortgagee repoa-
se~sea a motor rehfalo and sells the same at
a private sale, whloh prooedurd is in aooord-
anoe with the terms of the mortgage, your Ds-
partment Is authorized to issue a Certifloate
of Title in the name of the purohaser at suah
private forooloeure aale wbioh oertitioate may
not note on the same the aeoond or inrerior
liens which existed againat said motor vehl-
018 prior to the time of repossession and iore-
oloeure of the prior llen.w
In euoh opinion this Department reoognized that
the rule of law stated therein applied only to a forsolo-
sure of the rirst or prior lien and.the efieot of suoh
foreolosure on a second or mubsequent lien. It 1s a rule
or law too well settled to nead the oltation of authority
that where a eeoond or inferior lien is roreoloasd, euoh
foreclosure does not prejudice the right or extinguish
the lien of the first or prior nortga$e holder. Your
question therefore resolves itself down to thls: Ii the
lien whloh the vendor of the tires, radio and other ao-
oeseories takes against euoh artioles is a first lien
against euoh artioles even though they are put on to a mo-
tor vehlole which bears a prior and first lien against
Honorable Homer Oarrison, Jr., Page $
such motor vehicle, then the foreolosure of such lien
on the motor rehiale by the mortgage holder on the came
would not extinguish the first lien whioh the vendor of
the tires, radio or other aooessorles had against suoh
aoaesaorlee. However, on the other hand, if when suoh
tire, radio or other aooessory is attaohed to the mo-
tor vehiole, the party holdtng a first and prior lien
against such motor vehicle gets a first lien against auoh
tire, radio or other aocessory whioh Is superior to the
lien held by the vendor of suoh aoaessory; then in such
0886, the rorsolosure of the lien on the entire motor ve-
hicle would be a foreclosure of the tire, radio or aooes-
sery also, and the rule of law announced in our opinion
No.O-1984 would apply SO that pour Department could not
note on the Certliioate of Title of the new applicant who
purchased the motor vehicle at the foreolorure sale, the
lien which the vendor of the tire, radio or other aooss-
sorg held against suoh artiale. ~180 if the lien of the
vendor of suoh tire, radio or other aooessory is a superior
lien against suoh article over the holder of the original
first mortgage on the motor vehiale, then your question
would have to be answered in the affirmative and the ap-
plioatfon of the party who purohased the niotor vehicle at
the foreclosure sale with suoh tire, radio or other aooes-
sory lnoluded thereon would have to note suoh lien of the
vendor of euah aocessory on suoh applioatlon or show other
etvidonosthat suoh first lien against suoh aooessory has
been satisfied or extinguished.
We are able to find but one ease on this point
in Texas. That Is the oasb of Firestone Service Stores,
Ino., vs. Darden, 98 S. W. (a) 916, San Antonio Court 0r
Civil Appeale, deolded May 0, l.938. The iaots in that oass
were stated by the Court as followsr
'1116.
w. Wrden, or Bexar Oounty, Texas,
on the 7th day or July, 1934 purohasec rr00
the Motor Sales Coapny, a partnership oom-
posed or Lester 0. Fox and Milton welnrield,
one 19Bd Paokard Sedan, 1934, License No.
93,307, 00t0r NO. 67300-A for the sum or
(b.lOS.00, paying therefor b3S.00 in oash and
leaving a balanoe of #lO.OO for whloh the
said Darden exeouted to the Motor Sales Oom-
pany a ohattel mortgage on the automobile,
complete with standard attaobmenta, aooesso-
ries and equipment, The chattel mortgage was
Honorable Homer Garrison, Jr., page 4
duly filed of reoord with the County Clerk
of Bexar County, Texafl,on the 0th day of
July, 1934, a oopy of whioh mortgage ia here-
to attached and marked Exhibit *A”.
mlThereafter, on or about the 15th of AU-
gust, 1934, K. 91.Darden drove to the Flre-
stone Service Storee, Inc., In San Antonio,
Bexar County, Texas, and purohased three au-
tomobile tlree and tubes, size 600x23, being
Firestone Heavy Duty Tires and tubes, bearing
serial No. L-9630054U, L-964526U, and L-
97004itJ. That at the time of the purohase of
the tires and tubes and prior to the delivery
or the aame to M. w. Darden, a ohattel mort-
gage lien was execut6d from k. W. Darden to
the Blrestone Servloe Stores, Ino., to seoure
a balance of $66.00 of the purohase prloe of
said tires and tubes, a copy of said mortgage
1s hereto attached, marked Exhibit eB*. That
the ohattel mortgage was flied of reoord with
the Oounty clerk of Dexar County, Texas, on
the 27th day of August, 1934; that the tires
and tubes when purchased by E. K. Dardan wers
placed on the Packard Sedan above desorlbed
by the employees of the Firestone Servloe
Stores Inc., at the lnstanos and under the
dlreotion of 1yi.w. Darden while the said Paok-
ard Sedan was stl3.1on the premlsea of and at
the plaoe ot buslnese of the Firestone Servlos
Stores, Inc. ; that the old tire8 and tubes were
taken off said Packard Sedan Automobile by
Firestone Servloe Stores, Ino.*a employees and
were delivered by them to X. W. Darden. . . ln
In deoidlng the issue as to who had the superior
lien to those tlrea and tubes in question, the Court held
as r0n0w8:
“It will be noted that appelleeta chattel
mortgage only oovered the automobile and the
standard attaahments, aooessorles, and equlp-
ment dellvered to M. a. Darden, and does not
have any provision that such ohattel mortgage
shall include other accessories and equipment
thereafter placed upon this automobile. There-
fore the only theory on which appeliees 0Oui.d
Honorable Homer Garrison, Jr., Page %
oontend that their mortgage extended to anfin-
oluded the tires purchased rrom appellant by
Darden would be that the tires when plaaed up-
on the autokobile became a part thereof as an
aoaration or aconssion thereto. These tIrea
being easily Identif'iedby serial numF.ers,and
being so attaohed that they are easily removed,
without Injury to the automobile, do not be-
oome a part of the automobile by the rule or
accretion or aocession . . .*
The rule of law announoed by the San Antonio
Court of Civil Appeals In the Firestone oase that tires,
tubes, eto., do not become part of the motor vehiole by
aooeesion, is a rule of law recognized throughout the
United States. See also the oasesof Rotor Credit Company
VS. Smith, 24 S.W. (Sd) 974, (Sup. Ct. Ark.); Rosquet vs.
kiaokMotor Truok Company, 168 N.E. 800, (sup. Jud. Ct.
Ease.); Clarke v. Johnson, 187 P. 510, (Sup, Ct. Rev.)~
Meisel Tire f@ipang v. Edwards Finance Corp., 14 EJ.E.(IZ)
870; Franklin Service Station, Inc., vs. Sterling Motor
Truok Company of W.E., 147 Atl. 754, (Sup. Ct. R.I.).
You are therefore advised that in a aase where
a motor vehicle I.ssold Andya chattel mortgage taken on
tha same whioh does not aontaln any provision that tha
ohattel mortgage shall include other acoessorles and
aquipment thereafter plaoed upon the automobile, and where
later a tire, tube, radio, or other aoaessory is sold and
the vendor of suoh article retains a lien upon the sama,
that under the authority of the Firestone Servioa Stores
oasa, supra, the lien of the vendor of the aaoessory is
superior against suoh article to the 1%~ placed on the
motor vehiole upon its original sale.
we oall to your attention, however, the faot that
the San Antonio Court of Civil Appeals did not pass on this
question if the original mortga: