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 aaoordanoewith the term of themortgage, and that suah Oertifloate0r Titlemay not nata the ssoond or inferior llene',;whioh exl8tad against saidmotor vehiole p&r to the time of repossessionand forealoeureof the prior li0n.HonorableHomer Harrison,Jr., Page 8

WWenow ask the tollowlng question:

*Shall the Department iesue a Certifioateof Title against a motor vehlole upon affidavit of repoasessionand under the olroumstanoes outlinedabove,when there is ot record 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 ratisfied?”

Thie Department ruled in opinionNo. O-1984 as 

### roilowet
“Byway of 8ummary, it ia the opinion of this department thatwhere a mortgagee repoase~sea a motor rehfalo and sells the same at
a private sale,whloh prooedurd is in aooordanoe with the terms of themortgage, your Dspartment Is authorized to issue a Certifloate of Title in the name of the purohaserat suah private forooloeure aale wbioh oertitioatemay not note on the same the aeoond or inrerior lienswhich existed againat saidmotor vehl018 prior to the time of repossession and ioreoloeure of the prior llen.w

In euoh opinion this Department reoognized that the rule of law stated therein applied only to a forsolosure 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 settledto nead the oltation of authority thatwhere a eeoond or inferior lien is roreoloasd,euoh foreclosure does not prejudice the right or extinguish the lien of the first or priornortga$e holder. Your questiontherefore resolves itself down to thls: 

### Ii the lienwhloh thevendor of the tires, radio and other aooeseoriestakes against euoh artioles is a first lien against euoh artioles even though they are put on to a motorvehlolewhich bears a prior and first lien againstHonorable Homer Oarrison,Jr., Page $

suchmotor vehicle, then the foreolosureof 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 aooessorleshad against suoh aoaesaorlee. However, on the other hand, ifwhen suoh tire, radio or other aooessory is attaohed to themotorvehiole, the partyholdtng a first and prior lien against such motor vehicle gets a first lien against auoh tire, radio or other aocessorywhioh Is superior to the lien held by the vendor of suoh aoaessory; then in such 0886, the rorsolosureof the lien on the entiremotor vehiclewould be a foreclosure of the tire, radio or aooesseryalso, and the rule of law announced in our opinion No.O-1984would apply SO that pour Department could not note on the Certliioateof Title of the new applicantwho purchased the motor vehicle at the foreolorure sale, the lienwhich the vendor of the tire, radio or other aoosssorgheld 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 themotor vehiale, then your question would have to be answered in the affirmative and the applioatfonof the partywho purohased the niotor vehicle at the foreclosure sale with suoh tire, radio or other aooessory lnoluded thereonwould have to note suoh lien of the vendor of euah aocessory on suohapplioatlon or show other etvidonos

that suoh first lien against suoh aooessoryhas 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 CivilAppeale, deoldedMay 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 theMotor Sales Coapny, a partnership oomposed or Lester 0. Fox and Milton welnrield,
one 19Bd Paokard Sedan, 1934, LicenseNo. 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 Oompany a ohattelmortgage on the automobile, completewith standard attaobmenta,aooessories and equipment, The chattelmortgagewasHonorable Homer Garrison,Jr., page 4

duly filed of reoordwith the County Clerk of Bexar County, Texafl, on the 0th day of July, 1934, a oopy of whioh mortgage ia hereto attached and marked Exhibit *A”.

mlThereafter,on or about the 15th of AUgust, 1934,K. 91.Darden drove to the Flrestone Service Storee, Inc., In San Antonio, Bexar County, Texas,and purohased three automobile tlree and tubes, size 600x23,being FirestoneHeavy Duty Tires and tubes, bearing serial No. L-9630054U, L-964526U, and L97004itJ. That at the time of the purohaseof the tires and tubes and prior to the delivery
or the aame to M. w. Darden, a ohattelmortgage 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 saidmortgage 1s hereto attached,marked Exhibit eB*. That the ohattelmortgage was flied of reoordwith the Oounty clerk of Dexar County, Texas, on the 27th day of August, 1934; that the tires and tubeswhen purchased byE. K. Dardanwers placed on the Packard Sedan above desorlbed by the employees of the Firestone Servloe Stores Inc., at the lnstanosand under the dlreotion of 1yi.

w. Dardenwhile the said Paokard Sedan was stl3.1 on the premlsea of and at the plaoe ot buslnese of the Firestone Servlos Stores, Inc.; that the old tire8 and tubeswere taken off said Packard Sedan Automobile by Firestone Servloe Stores, Ino.*a employeesand
were delivered by them to X. W. Darden.

. . ln

In deoidlng the issueas to who had the superior lien to those tlrea and tubes in question, the Court held
as r0n0w8:

“Itwill be noted that appelleetachattel mortgage only oovered the automobileand the standard attaahments,aooessorles, and equlpment dellvered to M. a. Darden, and does not have any provision that such ohattelmortgage shall include other accessories and equipment thereafterplaced upon this automobile. Therefore the only theory on which appeliees 0Oui.dHonorable Homer Garrison,Jr., Page %

oontend that theirmortgage extended to anfinoluded the tires purchasedrrom appellantby Darden would be that the tireswhen plaaed upon the autokobilebecame a part thereof as an aoaration or aconssion thereto. These tIrea being easily Identif'ied by serialnumF.ers, and being so attaohed that they are easily removed, without Injury to the automobile,do not beoome a part of the automobile by the rule or accretion or aocession

. . .*

The rule of law announoedby the San Antonio Court of Civil Appeals In the Firestone oase that tires, tubes, eto., do not becomepart of the motor vehiole by aooeesion, is a rule of law recognized throughout the United States. See also the oasesofRotor Credit Company VS. Smith, 24 S.W. (Sd) 974, (Sup.Ct. Ark.); Rosquet vs. kiaok Motor 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. SterlingMotor Truok Company of W.E., 147 Atl. 754, (Sup.Ct. R.I.).

You are thereforeadvised that in a aasewhere
a motor vehicle I.ssold Andy a chattelmortgage taken on tha samewhioh does not aontaln any provision that tha ohattelmortgage 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 CivilAppeals did not pass on this question if the originalmortga:<e had containeda so-called waiter-aoquiredproperty" olauee. As no suoh ofauee appeared In the original chattelmortgage taken against tha motor vehicle, It was unneaessary for the oourt to pass on this question. However, this queetlsnhas been passed on by numerous oourts of theUnited States, and the rula of law throughout the United States has been settled and will undoubtedlybe followedby the Texas aourts when the oeoaaionarises.HonorableHomer Garrison,Jr., Page 6

Thereare numerous oases holding thatwhere-the original ohattelmortgage against the motor vahiole oontained an after-aoquiredproperty clause and later tires,
or other accessorieswere Installedupon saidmotor vehicle by a oonditionaleellerwho retained title to said aoosesoriee that In such case, despite such after-aoquired property olause, the right of the oonditlonal sellerwas superior to that of the originalmortgagee. The court 

### or Appeals of Qeorgia, in the oase of PaesIen vs. B. F. Goodrioh Company, 199 S.E. 775,November 10, 1938, stated aa rollowe In this oonnsotionr

“The oontraotwhich retained tho title to the truok uponwhich the tires sued for
were subsequentlyplaced, provided that additions to the truok ehould become a part or the truok and be ooveredby the oontraot.

. . *Every one who buys a truok knows that the replaoementof tires and tubes 1s~Inevitable rrom a standpoIntof keeping the vehicle in serviceand from a standpoint of proteotion of life and tha property itself. Eenoe the ease with whmiahthey are removable.

. . . *The title to the tiree never did pass to the owner of the truok, and we can think of
no reasonwhy the seller or the tires and tubes would be estopped to alaim title to them unless there was rraud praatioed ,Inthe replacement. Surely the eellsrwould not be estoppedbecause hemada traveling sarer for the truok and Its drivers and mada IWO of the truok sure and aontinuoueat least for a time. The seller’saotion oan not reasonablybe aaid to have oaused the party holding the oontraot
on the truok to have acted to his Injury. So, W@ conclude that the seller of the tires and tubes has the superior title and that the judgment of the court belowwas oorrect. Goodrioh Silvertown Stores v. Caesar, 214 N.C. 85, 197 5.2. 698; 2 Berry on Automobiles, 6th Ed. SlSO6; Linooln Road Equipment Co. v. Bolton, 127 Neb. 224, 864 N.W. 884; Goodrich

### SilVertovPnStOrQn

V. A. h A. credit 8ystem, Ino., 200 Idinn.866,Honorable Homer Garrison,Jr., page V

874 N.W. 178r Firestone Servioa Stores, Ino.,
v. Darden, Tax. cit. App., 90 S.W. 86 313; Goodrioh Silvertown Storea v. Pratt Motor CO., 198 Minn. 8bO, 869N.W. 464; Ksirsl Tire (lo.
v. Ear-Be1 Trading co., 155 Miso. 664, 2SO x?. Y.S. 335, and cit.; 98 A.L.R. 427, and cit.’

The 8ame faot aituatloa oonfrontsd the Supreme Court of Rhode Island in the ease or Franklin Servloa Station, Inc.,va. SterlingMotor Truak clompanyof N.X. 147 Atl. 764,deoided November IS, 1929. The original chattelmortgage in that oese oontalnadan after-aoqulred property olaure. The vendor of the tires sold the same under a oonditlonalsale oontraot, In which ease title reaained in the vendor. The 00urt held the righta of the oonditlonalvendor ot the tires superior to that of the original ohattslmortgagee and stated as follower

WTha automobile to-day is

### orten assembled with partsbought iron dirrerontdealera, which are separableand replaceable. Thlr praotloeand oourae or the business met be considered on the questfonat aooession us applied ta automobllsr

. *we are 

### or the op%nion, as,alrsady espressed, that themortgage@ did not have title to the tires in que~tlon.*

The same rule or law was announoedby the supreme 

### court 0r calirornia in the ease 

### or D. Q. 

### ssnios tMrporation vs. SeouritiesLoan and Dlsoount Ooapany, 292 P. 497.

Tha rule or law announoed above in a easewhere the original ohattelmortgage contained an a?ter-aoqulred property olauae and the vendor of the tire or other aoo8seory retained title to suohaoorasory under a aonditional sales oontraothas also been extended to oaseswhere the vendor 0r the tire or aocessory retained only a lion against suoh aooessory, The rule has been established that the originalmortgagee Mdar the after-a@gUimd pTOp@Sty tthUSe has his mortgage attached against suoh after-adquired tir6
or other aocessory only to the extent of the title of the purohaser in said artiole. The Supreme court 0r Errors 

### or

## 315

Honorable Homer Garrison,Jr., page S

CoMaatiaut aMoUW3ed this rule or law In the aaLse of Tire Shop Y. Peat, 161 Atl. 96, June 21, 1932. The Court stated as r0li0w88

*While the authorltiee are not in harmony,
we regard theweight of reason to be with those who hold, at least in the abeenae of express provision oonoernlngafter-aoquiredequipment, that the conditionalvendor of a car, on repossessing it, takes only suah title as the purchaserhad in parts or equipment sold to him under a oonditlonalbill of sale,which are as easily and readily detaohebleas tires and tubes

. . . nThe defendantmakea a broader claim, that, by the terms 

### 0r the sale 0r the automobile to Carney, the tirea and tubas baoeuna subjeot to the provfelon that ad&~& or eubatitutedparts
or aqulpaent plaood upon 6he ear are to beoome
a oomponentpart of it and are lnoludad in the term *oar*as used fn the bill of sale, and that therefore the pleintiff,when the tires and tubeswere attaohed to the 

### oar, lost all right
or intareat in them. But while the dsiandant and Carneywere tree tomake thie agreement between themselves,they oould not by its terms bind third persons not parties to it. Davis Y. Blies, supra. Title to the tires and tuber oould pass to the derendant only through carney, and he oould pass only ruoh title as he aoqulred in them by their purohaae. Wood Y, Holly Mfg. Co., supratUnited State8y. New CMeans k 0. R. Do., supratHo&es y. Mooney, supra. But Carneynever did aopuireany property in them which waa not subordinate to the piaintiwa rights. It neaessarily rollows that the derendant oould only aoquire a property in them subjaot to those rights. The doatrineof title by aaoeasion doee not apply to the-equipment oi a oarwhioh the buyer and seller do not intend to bemerged into its struatureand whioh is olaarly df8tlnguishable, and as readilydetaohable from lt as are tires and tubes. Franklin SerYiOe StattOM, InO., Y. SterlingMotor Truok Co., SO R.S. 336, 147 A. 734; BouSquetY, Maok k?otorTruak Co., 869 Mass. 

### 800, 160N.E. 000,

. .*Honorable Homer Oarrison,Jr., ~6s g

An exaruple

of a aasa where the vendor of the tires took only a chattelmortgage on #al& tires and was held to hare a prior lien over and agalnst the original ohsttelmortgagee of themotor vahiolawhloh ahattel mortgage oontainedan after-aoquiredproperty olausewue the OoodriohSilvertown Stores Y. Caesar, 197 S.E. $98, ;&he Supreme Court of Worth Carolina,deaided JUIO 82,

low& The questionbefore the court was atated as fol-

"The questionpresanted for deoialon is: Where the seller of automobile tires in6 tubas, at the tIma of the sale, takes a ohattalmortgage on the tires and tubas, and also on a truok, to seaure the balanoa of the purohaeoprice of the tires and tubes, and tharaafter the tire8 and tubes are placed on the truck, is the seller of the tires and tubas, upon derault in tha payma&s, entitled to recover them, or their value, from the seller or tha truokwho has repossessed It,with the tires and tubas on It, undsr a prior aonditionalsales oontraoton the truckwhloh oontainsan after-acquiredproperty olause?

In answer to the question, the court etatad an 

### r0u0ws :

“Thedootrine of aoaarsion is inapplloable in oaseswhere personalproperty Is plaoed 

### uponother personalproperty 

### ii the property
so plaoedhad not becomean Integral .part

### Or the property towhich it was attaahed and oould be oonvenlentlydetaahed.

. . “The oonditional sales agreementwas between the defendant Paul 

### BeMutt Motor (fompny,
as seller, and (juittle C. Caesar, aa buyer, and the agreementby the buyer *thatany equipment, repairs,replacements or accessories plaaed upon said oar shall be at the buyer’s expense and shall become a componentpart thereof and inoludad In the terma of this agreement’ inured to the benerlt of the xotor Company only to the extent of’

whatever property Caesarmay have had in any aoaessories, lnaluding tires and tubas, plaoad upon the truak, and Caesar never had any property In the tires and tubes not subjeot to the purchasepriae ohattelmortgage exeauted byHonorableHomer Oarriaon, Jr., age 10

him to the plaintiff. Therefore, the plaintirf,
as holder of a past due ohattelmortgage thereon, had a right to the posseesion of the tiresand tubes, unless they had become so attaohed to the automobile so as to become suoh an integralpart thereof'

aa not to be removablewithout detriment to the automobile.

. .*

The aame rule of law was aMounaed by the Suprw Court of Yinneaota, in the case of Goodrich Silvertom Stores of B. 8. OoodriohCo. V, A. & A. Credit System, IRO., 274N.W. 172, decidedJune 11, 1937. The oourt 8tated the rule as hollows:

"It is the rule in this state that, oomplianoewith registry lawe aside, artlolee attaohed to an automobileor other prinoipal artiole oi personal property, when easily detaohablewithout injury to either, do not parr by aoosrrrion to the one having a priormortgage
or lien on the prinoipalartiole, ae against the conditionalvendor of the aoceasoriea, even if the lien inetrumenton the principalarticle has an after-aoquired property olause. 000&- rioh BilvertownBtorea v. Pratt Motor Co., 198 Minn. 269, 269 N.W. 464. Thfs la on the theory that a mortgage or other lien reaohing aiteraoquiredproperty can only attaah to euah property in the oonditionas to title inwhich it
comes into the hands of themortgagor. 

### St.Paul Xleo. Co. v. Baldwin Engineering Co.,~l29

### Nina. 221, 199 N.W. 9; Sohnirringv. Stubbe, lT7 Minn. 441, 225 N.W. 989. Since Vader got only a qualitied title,whioh oould not beoomemore without payment of the full purohaee prioe, defendant could take no greater right than Vader."

This rule of law applicable in a oase where the vendor of a tire or acoeaeory passea title to the purohaeer and retains only a lien was perhaps best statedby the Supreme Court of South Carolina in the case of QooariohSilvertown, Ino., vs. Rogers, et al, 200 S.W. 91, Deoeaber 9, 19328. The oourt stated as f'ollowst

*The

### rf20tthat the mortgage 

### or the defendantRotor Company contained a olause oovering after aoquired property is not oontrolling. Before the sale of the tirea to Rogera,Honorable Homer Garrison,Jr., Page 11

title theretowas in the plaintltf, It passed to Rogers simultaneouslywith the taking effect of themortgage to the plaintiff, it being in eff'eat

a single transactionand Rogera only aoquired title subject to the title retention contract, this being the true intention of ths parties. He was never, therefore, able at any time, either prior or subsequent to the purchase, to pass any grehter rights than he had

. . . Yonderthe rule in the Cash X;illsCase, a mortgage intended to coverafter aoquired property can only attach itaelr to euoh property in the oondition inwhich it oomes into the mortgagor'shands. In the oase at bar, the tireswere subleot to the interest of the seller. who by virtue & its sales oontraot retaineda ' epeozfio lien thereon.

. ." (Underscoringours)

Our Oonol~sion based on the above disoussedoases is as 

### r0il0ws:

The lien of the vendor of the tire, tube, or other aoceesory is a first lien against suoh artioleand is euperior to the lien of originalvendor of the motor vehiole YOwhich eaid accessory is attached. This is true 

### even though the originalmortgage on the motor vehiole oontalns
an wafter-aaquiredproperty" clause.

It la the opinion:of this Department,therefore; that the Department of F%blio Safety may not issue a oertirioate of title on a motor vehicle upon aff+idavlt of repossessionwithout noting on said Certificateof Title the rirst lien or the vendor of the tire, radio, or other accessorywhioh la attached to the motor vahiale unle8s the applloant

### ror the new certifioateof titlewho is the purabaser at the foreolosure sale produces evidence betore your department that auoh rlrst lien against suoh sutomobile aooessoryhas been satisfied.

AFFF.C)VEGJUL

2, 1940 Yo,urs very truly

ATMRNBY GEMShAL OF TPrXAS

BY