Inland Finance Co. v. Inland Motor Car Co.

Parker, J.

(dissenting) — I concur in the view that the judgment should be reversed,'but dissent from the vieWs of Judge Fullerton as to the ground he has rested the- reversal upon. I am of the opinion that the agreement between-appellant and the motor car company was in legal effect as between them a conditional sale contract;--and that, because of want of record thereof in the - auditor’s office of Taldma county,: it became an *307absolute sale as to tbe mortgage lien of respondent thereafter acquired, as long as that lien continued to be a valid and subsisting lien. However, as between appellant and the motor car company, appellant had a right, upon the failure of the motor car company to pay the agreed purchase price, to reclaim possession of the automobile and remove it to its branch in Spokane county at the time it did so. I am at a loss to see that any legal wrong was committed by appellant as against any one in so taking possession of the automobile and removing it to Spokane county. It is true the mortgage lien of respondent was then a valid and subsisting lien upon the automobile; and we may concede that it remained a valid and subsisting lien as against the motor car company even after the removal of the automobile to Spokane county, because the want of record in that county would not affect the mortgage lien as between respondent and the motor car company, the parties to the mortgage. But I think that does not argue that the mortgage remained a valid and subsisting lien against appellant’s interest in the automobile longer than thirty days following the removal of the automobile to Spokane county. In § 3788, Rem. Comp. Stat. [P. C. § 9748], relating to the preservation of mortgage liens upon personal property removed from the county of the situs of the property when mortgaged, we read:

“When personal property mortgaged is thereafter removed from the county in which it is situated, it is, as except between the parties to the mortgage, exempted from the operation thereof, unless either:
“1. The mortgagee within thirty days after such removal causes the mortgage to be recorded in the county to which the property has been removed; or
“3. The mortgagee within thirty days after such removal takes possession of the property: . . .”

*308In Turner v. Caldwell, 15 Wash. 274, 46 Pac. 235, there was drawn in question a claimed mortgage lien •upon personal property which had been removed from the county of its situs in which the mortgage was of record to another county more than thirty days after such removal. Disposing, of such claim, this court said:

“Appellants contend that the property was surreptitiously taken from Chehalis county to Mason county without their knowledge or consent. They furthermore offered to show that the respondents, at the time of the levy, knew of the existence of the mortgage. We are of the opinion that this was insufficient to sustain appellants’ claim. The statute (§ 1649, Gen. Stat.) provides that when personal property is removed from the' county, it is, except as between the parties to the mortgage, exempted from its operation unless within thirty days after such removal the mortgage is recorded in the county to which the property has been taken, etc.; and this without regard to any knowledge of the existence of such mortgage by the parties subsequently claiming the property. The obligation was upon the mortgagee to keep track of the mortgaged property and see that the same was not taken from the county where it was mortgaged, or that1 the mortgage lien was preserved as pointed out by the statute.”

Section 1649, Gen. Stat., therein referred to, is now § 3788, Rem. Comp. Stat. [P. C. § 9748], above quoted. It is true in that case the levy which effected the taking of the property from the mortgagor in the county to which it had been removed occurred more than thirty days following such removal; and in this case the taking and removal of the automobile to Spokane county and the commencement of appellant’s possession of it in Spokane county occurred within thirty days following its removal to that county; but this, according to our recent En Banc decision in Muller v. Bardshar, 119 *309Wash. 252, 205 Pac. 845, does not militate against the rights of appellant to have the mortgage lien of respondent declared terminated upon the expiration of the thirty days within which, according to the statute, the mortgage must be recorded in the county to which the property is removed, in order to preserve the mortgage lien. In other words, it is not a question of when appellant took possession of the automobile, but it is a question of whether or not respondent preserved its mortgage lien as against appellant by a timely record of its mortgage in Spokane county. Of course, if appellant had nó higher right to the automobile than the motor car company, the mortgagor, the mortgage lien would be good as against appellant in the absence of record of the mortgage in any county, because, as between a mortgagor and mortgagee and those whose rights are identical with the mortgagor, the mortgage is good without any record. I am quite convinced that appellant’s rights are not identical with those of the mortgagor, the motor car company, but are superior to those of the motor car company; in other words, that appellant not only had the reserved title to the automobile under the conditional sale contract, but, upon taking possession thereof upon failure of the motor car. company to comply with the conditions of the sale con-, tract, appellant became the absolute owner of the automobile as against the motor car company.

This is not a case of appellant’s taking advantage of its own wrong, as it could be said to be of a mortgagor wrongfully removing the mortgaged property from the county of its situs in which the mortgage is made of record; for appellant did have the absolute right to take and remove the property to Spokane county as against the mortgagor, the motor car company. For whatever impairment of respondent’s rights there was *310thus effected it had the right and duty, under the staff ute, of causing its mortgage to he recorded in Spokane county, or suffer the loss of its lien rights at the end of a period of thirty days following the removal of the automobile from Yakima county to Spokane county. Failing to so preserve its mortgage lien rights, the automobile, at the expiration of that period, became “exempted from the operation” of the mortgage. I think our decision in Muller v. Bardshar, supra, is in principle decisive , of this case as against respondent. It is for these reasons I concur in the reversal of the judgment.

Holcomb, J., concurs with Parker, J.