On Rehearing.
BRATTON,District Judge. [5] In the former opinion we held that we were precluded on account of the incomplete condition of the record before us from considering the first question presented, to wit, that the trial court erred in holding the lien claimed by the appellee on the automobile should be enforced as against the appellant, who was an innocent purchaser thereof for value and without notice of said lien. The incompleteness of the record consisted in the failure to include therein the original stipulation of facts upon which the case was submitted to the trial court, and with this condition obtaining we held that every presumption in favor of the correctness and regularity of the judgment should be indulged.- We further said that the trial court may have found as a fact that the appellant purchased the automobile with knowledge of appellee’s lien.
In his! motion for rehearing appellant concedes the record to be as stated, but he now contends that it is affirmatively stated in the briefs of both appellant and appellee that at the time appellant purchased the automobile be had no knowledge of appellee’s alleged lien, and hence this court should regard the same as an admitted or conceded fact. The statement of facts contained in appellant’s brief contains the following:
“The plaintiff did not retain possession of the automobile, but permitted the said Bob Southern to take it from its garage after the repairs, oil, lubricants, etc., were furnished him; that some time about the 16th day of October, 1918, defendant purchased the automobile in question from one E. M. Baca, who was at said time the owner thereof; that since said date defendant has been the owner of said automobile, and retained possession thereof up until it was taken from him by plaintiff at Mag'dalena, N. M. Defendant thereupon filed a replevin suit and took possession of the automobile in question under a writ of replevin. At the time defendant purchased the said automobile, he had no notice, either constructive or otherwise, that plaintiff had any claim or lien on said automobile.”
The pertinent part of the statement of facts in the appellee’s brief is:
“That case was heard by the court below on an agreed state of facts wherein it appeared that defendant, covering a period of time from April 22, to May 22, 1918, at his request, furnished to Bob Southern, the then owner of the automobile in question, oils, lubricants, and supplies, made repairs, and performed labor on and for the car; itha/t defendant, at the time of furnishing the supplies, repairs, and performing the labor, did not retain possession of the car, but afterwards, the car lawfully coming into his possession, withheld same for such furnishings and labor, and was so holding it when plaintiff instituted this replevin suit; that at the time of so regaining- and having lawful possession of the car it had been sold to plaintiff, and that he (plaintiff) had no notice of such furnishing by defendant and lien claimed by him.”
It is apparent from the quoted parts of the briefs of both parties that it is conceded appellee furnished the oils, lubricants, and accessories for and made repairs! on the automobile as alleged; that it did not retain possession of said car, and after parting with such possession the appellant, without notice of such lien, purchased it. These facts stated by counsel in their briefs will be considered by us the same as an admission made on the trial of the ease in the trial court. Territory v. Bd. Co. Com’rs., 13 N. M. 89, 79 Pac. 709; Springer v. Wasson, 25 N. M. 379, 183 Pac. 398. We will therefore proceed to determine the question now presented, which we declined to decide in the original opinion for the reasons stated. It is well settled that at common law the right of a mechanic or repair- man to a lien upon an article repaired is dependent upon his actual and continued possession, and if, after acquiring such lien, he yoluntarily Surrenders possession of the repaired article, the lien becomes extinguished. Berry on Automobiles, § 765; Hiner et al. v. Pitts et al, 89 Or. 602, 175 Pac. 133; Crucible Steel Co. of America v. Polack Tyre & Rubber Co., 92 N. J. Law, 221, 104 Atl. 324.
Prior to the enactment of chapter 65, Laws 1917, we had no statute giving a garage or repair man a lien for . repairs -furnished, or work performed; but the same was a common-law lien, and was therefore dependent upon the lienholder keeping and retaining continued possession of the automobile repaired or worked on. Section 22 of the act which is quoted in the original opinion, standing alone, is susceptible of two constructions; the first being that the Legislature intended the lien, when once created, should follow the vehicle and be in force as against innocent purchasers without notice thereof, and the second being that it should apply and be effective only as to the owner for whom the supplies were furnished and woi'k performed, as well as against purchasers or others with notice.
To arrive at the legislative intent, the entire act may be looked to. We think such intent is plain, when this section is read in connection with section 26 of the act, which is as follows:
“Whenever any person wishes to proceed against any property upon which he has a lien, by virtue of this article, he may commence his suit in the ordinary form, and shall have judgment against the original debtor for the amount that shall be found due him, and upon said judgment execution shall issue as in other cases for the sale of the property on which said lien has attached, and if said property does not satisfy said execution, other property of said defendant may be executed and sold to satisfy the same."
By this section the procedure to enforce such a lien is prescribed, and no provision is made for making any party a defendant in such proceeding, except the owner who contracted the debt. The judgment authorized is limited to the original debtor, with the further provision that execution thereon as in other cases shall issue, and if the property shall fail to satisfy the execution, other property of said defendant may be executed. The use of the words “other property of said defendant,” when referring to the original debtor, evidences a clear intention of the Legislature that the property repaired or worked upon shall then belong to such original debtor, and shall be first exhausted before other property belonging to him shall be resorted to, thus clearly showing that the Legislature did not have in mind enforcing such a lien as against any one except the original debtor. Of course, under the uniform decisions, such- a lien would be en-forcable as against purchasers with notice thereof.
We are therefore of the opinion that the lien given and created by the statute is enforceable after possession of the automobile is voluntarily surrendered as to such owner for whom such repairs were furnished and work performed, and those with notice thereof, but not as to innocent purchasers without notice.
For the reasons stated, the trial court erred in upholding and enforcing the lien as against the appellant, who was eoncededly an innocent purchaser without notice. It follows that the cause should be reversed and remanded, with instructions to enter judgment for appellant in accordance with the views herein expressed, and
It is so ordered.
Horrrts, O. J., and BayNouds, L, concur.